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HOWARD  C.  JOYCE. 

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THE    LAW 


RELATING    TO 


INTOXICATING  LIQUORS 


A   TREATISE    COVERING    THE    CONSTRUCTION    AND    AP- 
PLICATION OP  ALL  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS    RELATING    TO    THE    TRAFFIC    IN    IN- 
TOXICATING LIQUORS  AND  PROSECUTIONS  FOR 
VIOLATIONS  OF  THE  LIQUOR  LAWS 


BY 

HOWARD   C.  JOYCE 

OF   NEW  YOKE   CITY 

AUTHOR  OF   "LAW  OP   INJUNCTIONS,"    "LAW  OF  INDICTMENTS,"  ETC. 


ALBANY,  N.  Y. 
MATTHEW    BENDER  &  COMPANY 
1910 


r 


Copyright,  1910, 
By  MATTHEW  BENDEK  &  COMPANY. 


14- 


PREFACE. 


The  questions  relating  to  the  manufacture  and  sale  of  intoxi- 
cating liquors,  and  the  reduction  or  prevention  of  the  evils  re- 
sulting from  the  traffic  therein,  are  most  interesting  and  import- 
ant both  from  a  sociological  and  legal  standpoint. 

Following  the  agitation  by  civic  bodies  and  organizations  legis- 
lative bodies  have  in  recent  years  passed  many  laws  in  regard 
thereto  having  for  their  object  in  some  cases  merely  the  regulation 
and  control  of  the  traffic  and  in  other  cases  the  prohibition  thereof. 
Statutes  and  ordinances  have  been  many  and  varied  in  character 
and  have  been  the  subject  of  much  discussion  in  the  courts,  and 
their  constitutionality  whether  their  object  has  been  regulation  or 
prohibition,  has  been  a  matter  which  our  legal  tribunals  have  been 
constantly  called  upon  to  determine.  The  consideration  being 
given  to  this  subject  is  evidenced  by  the  constantly  increasing 
number  of  decisions  in  regard  to  the  various  legislative  acts 
having  reference  thereto. 

It  is  not  the  purpose  of  the  author,  nor  is  it  within  the  scope  of 
this  treatise,  to  consider  the  expediency  of  the  various  measures 
proposed  or  to  compare  their  relative  value  and  benefit.  lie  has, 
however,  endeavored  to  present  to  the  bench  and  the  bar  a  treatise 
upon  the  law  regulating  the  manufacture  and  sale  of  intoxi- 
cating liquors,  considering  in  detail  the  constitutional  and  legis- 
lative provisions  in  regard  thereto,  stating  the  law  as  it  stands  at 
the  present  day.  The  constitutionality  of  such  measures  as  affected 
by  provisions  of  the  United  States  constitution  as  well  as  those  of 
the  states,  and  the  effect  of  the  Wilson  Act  upon  the  power  of 


734C 


vi  PREFACE. 

the  states  are  discussed  at  length.  The  preparation  of  this  treatise 
also  necessarily  includes  such  matters  as  prohibition,  the  taxing 
and  licensing  of  the  traffic,  enactments  generally  of  a  regulative 
and  restrictive  character  as  to  the  conduct  of  the  traffic,  search 
and  seizure  laws,  local  option  laws,  and  civil  damage  statutes.  Also 
the  questions  of  prosecution  of  offenses  under  the  liquor  laws  and 
of  evidence  on  the  trial  thereof  are  considered.  In  fact  the  author 
has  in  brief  endeavored  to  prepare  a  treatise  upon  the  law  relating 
to  this  important  subject  which  will  be  of  practical  value. 

Trusting  that  he  has  accomplished  the  object  sought,  in  a  man- 
ner satisfactory  to  the  user  and  that  it  will  meet  with  some  portion 
of  the  approval  accorded  to  his  previous  works,  he  respectfully 
submits  it  for  consideration. 

New  York  City,  June,  1910. 

Howard  C.  Joyce. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
DEFINITIONS  AND  TERMS. 

PAGE 

Section    1.  Construction  of    term  "intoxicating  liquors  "—remarks  gen- 
erally   

2.  "  Liquor  "  denned * 

3.  "  Intoxicating  liquors  "  defined  and  considered 3 

4.  Same  subject — judicial  notice 

5.  Same  subject — evidence  to  show  character  of 5 

6.  Same  subject — name  immaterial 6 

7.  "Spirituous    liquors"    defined    and     considered— "  distilled 

spirits  " ' 

8.  Same  subject  continued 8 

9.  "  Intoxicating  liquors  "— "  spirituous  liquors  "—where  statutes 

specify  what  are " 

10.  Same  subject  continued H 

11.  "Ardent  spirits"  defined ** 

12.  "  Malt  liquor  "  defined  .    *•* 

13.  "Vinous  liquors"  defined 

14.  ' '  Intoxication  "  defined 

15.  "  Dramshop  "—"dramshop  keeper  "—"saloon  "  defined 14 

16.  "Tippling  house"  defined *5 


CHAPTER  II. 

PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES. 

Section  17.  Alcohol 

18.  Ale l8 

19.  Beer  generally " 

20.  Beer — strong  beer— judicial  notice  as  to  character  of 21 

21.  Beer,  as  an  intoxicating  liquor— judicial  notice — decisions 21 

22.  Same  subject  continued— contrary  view 23 

23.  Same  subject— conclusion *■> 

24.  Lager  beer ■ ~° 

ix 


TABLE  OF  CONTENTS. 

PAGE 

25.  Lager  beer — as  an  intoxicating  liquor 27 

26.  Brandy 28 

27.  Brandy  cherries  and  fruit 29 

28.  Cider 30 

29.  Cider— hard  cider 31 

30.  Cider — statutes  as  to 31 

31.  Gin 32 

32.  Porter 33 

33.  Whisky — as  a  spirituous  liquor 33 

34.  Whisky — as  an  intoxicating  liquor 41 

35.  Wine 42 

36.  Wine — as  an  intoxicating  liquor— statutes 43 

37.  Medicines— compounds  recognized  by  standard  dispensatories. .  44 

38.  Compounds — proportion  of  alcohol — question  of  use  as  a  bev- 

erage     45 

39.  Compounds — sale  of  to  be  used  as  a  beverage 48 

40.  Compounds — good  faith  in  making  sale 49 

41.  Compounds — whether  intoxicating  liquor — question  of  fact — 

judicial  notice 51 

42.  Compounds — whether  intoxicating  liquor — conclusion 52 


CHAPTER  III. 

UNITED  STATES  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS. 

Section  43.  Power  of  Congress 54 

44.  Fourteenth  Amendment  to  Federal   Constitution  as  affecting 

power  of  State  56 

45.  Fourteenth  Amendment  does  not  permit  state  legislation  as  to 

liquor  traffic 57 

46.  Other  Federal  Constitutional  provisions  as  affecting  right  of 

state 58 

47.  Federal   Constitution  as  affecting   right  of  State  continued. 

Particular  laws 59 

48.  Power  of  state  as  affected  by  United  States  constitution — com- 

merce    61 

49.  Vance  v.  Vandercook.     Rules  stated  in 62 

50.  Power  of  state  as  to  interstate  shipments  generally 64 

51.  Sales  in  original  packages — prior  to  Wilson  Act 65 

52.  Keeping  liquors  in  state  for  sale  in  another  state 66 

53.  Can  not  forbid  shipment  into  state 66 

54.  Wilson  Act — effect  and  construction  of 67 

55.  Wilson  Act  does  not  prevent  right  to  order  and  receive 69 

56.  Statute  limiting  right  to  order — application  to  state  official 69 

57.  Wilson  Act — words  "  upon  arrival "  construed 70 

58.  State  statute  as  to  place  of  delivery  and  sale 71 

59.  Soliciting  of  orders 71 

60.  As  to  right  to  advertise 74 


TABLE  OF  CONTENTS.  xi 

CHAPTER  IV. 
CONSTRUCTION  OF  STATUTES  GENERALLY. 

PAGE 

Section  61.  Constitutional  provisions  as  to  title  and  subject-matter  of  act 

construed 76 

62.  Local  or  special  laws  generally 78 

63.  Laws  to  be  general  and  uniform 78 

64.  Intoxicating  liquor  statutes — construction  of  generally 79 

65.  Construing  laws  together 79 

66.  Construction  of  act— intent  of  legislature 80 

67.  "Where  part  of  act  invalid 81 

68.  As  to  exceptions  in  statute 81 

69.  Statutes  affixing  penalties  strictly  construed 82 

70.  Construction  of  amendments  to  statutes 83 

71.  Repealing  laws  generally 84 

72.  Repeal  by  implication 85 

73.  Statute  denouncing  two  separate  offenses 87 

74.  Political  subdivisions  of  state — judicial  notice  in  construing 

statute 87 

75.  One  not  affected  by  law  cannot  question  validity 87 

CHAPTER  V. 

POWER  OF  STATE  TO  REGULATE  TRAFFIC. 

Section  76.  Liquor  traffic  generally 89 

77.  No  inherent  right  to  sell 90 

78.  Nature  of  right  to  sell 91 

79.  Constitutional  provisions  affecting  power 92 

80.  Control  of  state  generally — police  power 94 

81.  Power  of  state  to  regulate 95 

82.  Legislature  may  impose  conditions  deemed  proper 97 

83.  Right  to  prohibit  traffic  generally 98 

84.  Effect  of  license  from  United  States 102 

85.  Cannot  prohibit  having  liquors  in  one's  possession 104 

86.  Prohibition  by  state — where  property  diminished  in  value 105 

87.  Same  subject  continued  108 

88.  Prohibition  as  affecting  property  values  concluded  108 

89.  Power  of  state  to  engage  in  liquor  traffic.    109 

90.  Dispensary  laws — Alabama  decisions 110 

91.  Dispensary  laws — Other  decisions 113 

92.  Dispensary  laws — federal  decisions 115 

93.  Dispensary  laws — question  as  to  creating  monopoly 116 

94.  Dispensary  act — power  of  mayor  to  enforce  action  under 117 

95.  Sales  by  dispensers  after  dispensary  abolished 117 


TABLE  OF  CONTENTS. 

PAG 

96.  Town  and  city  agents  to  purchase  and  sell 117 

97.  Same  subject — liabilities  and  rights  of  towns 118 

98.  Same  subject— power  of  agents 119 

99.  Same  subject — power  of  agents  to  delegate  authority 120 


CHAPTER  VI. 
PARTICULAR  STATUTORY  REGULATIONS. 

Section  100.  Excluding  liquor  traffic  from  certain  localities 123 

101.  Designating  saloon  limits  in  cities  and  towns 124 

102.  Consent  of  owners  of  dwelling  houses 124 

103.  Excluding  traffic  within  certain  distance  of  building  or  place. .  125 

104.  Same  subject — colleges — schools — churches 126 

105.  As  to  premises  and  use  of . . .    ,  .  127 

106.  Same  subject — as  to  entrances 128 

107.  Same  subject — confining  business  to  single  room 129 

108.  Prohibiting  sale  in  brothels 129 

109.  Forbidding  obstruction  of  view  of  interior  of  saloon , 130 

110.  Same  subject — Massachusetts  laws 131 

111.  What  obstructions  are  within  the  prohibition  122 

112.  Prohibiting  sales  to  certain  classes  of  persons 134 

113.  Prohibiting  sales  to  minors 135 

114.  Prohibiting  sales  to  females 137 

115.  Prohibiting  employment  of  females 138 

116.  Filing  with  official  list  of  names  of  employees 139 

117.  Closing  of  saloons  on  certain  days 139 

118.  Closing  of  saloons  on  Sunday  141 

119.  Closing  of  saloons  on  Sundays — hotels 143 

120.  Designation  of  hours  for  keeping  closed 143 

121.  Legislation  as  to  quantity 144 

122.  Requiring  seller  to  make  returns  or  keep  statement 146 

123.  Committing  sale  to  particular  classes  of  persons 146 

124.  As  to  sales  by  druggists 147 

125.  Same  subject — requiring  of  prescription 148 

12(5.  Same  subject — extent  of  right  to  sell 149 

127.  Returns  by  druggists 150 

128.  Requiring  written  application  or  request 151 

129.  As  to  sale  by  social  clubs  152 

130.  Inspection  of  liquors 152 

131.  As  to  adulteration  of  liquors 153 

132.  Designation   of  cereals  to  be  used   in   manufacture  of  malt 

liquors 156 

133.  As  to  furnishing  public  record  of  internal  revenue  receipt 157 


TABLE  OF  CONTENTS.  xiii 

CHAPTER  VII. 

MUNICIPAL  POWERS  AND  REGULATIONS. 

PAGE 

Section  134.  Legislature  may  delegate  power  to  municipal  corporation 160 

135.  Grants  strictly  construed 162 

136.  Incidental  or  implied  powers 163 

137.  Same  subject — power  to  suppress,  regulate  or  restrain 164 

138.  Power  of  city  to  prohibit  165 

139.  Grant  of  power  to  regulate,  restrain  or  license 166 

140.  Prohibiting  keeping  for  unlawful  sale 168 

141.  Ordinances  should  be  general 169 

142.  Ordinances  must  be  reasonable 169 

143.  Where  title  of  ordinance  contains  surplusage 170 

144.  Ordinances  having  extra  territorial  effect  170 

145.  Ordinances  should  conform  to  law  of  state 170 

146.  Same  subject — application  of  rule 171 

147.  Same  subject — engaging  in  liquor  traffic 173 

148.  Same  subject — ordinance  providing  for  fine  or  punishment. . . .  173 

149.  As  to  powers  of  municipal  officers 174 

150.  General  law  as  repealing  municipal  powers  and  ordinances. . .  .  175 

151.  Act  conferring  power  on  city  as  repealing  general  law 176 

152.  Construing  statutes  and  ordinances  together 178 

153.  Statute  and  ordinance  making  same  act  an  offense 178 

154.  Construing  ordinances  together 179 

155.  Ordinance  invalid  or  invalid  in  part 179 

156.  Prohibiting  traffic  in  portions  of  city 180 

157.  Same  subject — ordinances  construed 182 

158.  As  to  ordinances  where  territory  annexed  to  city.  ...**•" 182 

159.  Ordinance  as  to  screens,  etc.    183 

160.  Ordinances  as  to  stalls,  booths  or  inclosures  184 

161.  Prohibiting  sales  to  minors 184 

102.  Prohibitions  as  to  women 185 

163.  Prohibitions  as  to  employment  of  women 186 

164.  Requiring  Sunday  closing 187 

165.  Requiring  closing  other  than  Sundays 188 

166.  Power  to  designate  hours  of  closing  and  opening  of  saloons. . .  189 

167.  Same  subject — ordinances  held  valid — instances  190 

168.  Same  subject— ordinances  held  invalid— instances 191 

169.  Ordinances  as  to  quantity 192 

170.  Ordinance  as  to  who  may  conduct  business 193 

171.  Ordinances  as  to  access  of  officials  to  premises 194 

172.  Ordinances  affixing  penalty 194 


siv  TABLE  OF  CONTENTS. 

CHAPTER  VIII. 

TAXES-LEGISLATIVE  POWERS. 

PAGE 

Section  173.  Taxation  of  traffic  generally 195 

174.  May  levy  tax  though  traffic  prohibited  197 

175.  Classification  by  legislature — population  of  cities  and  towns 

as  basis "  •  ■   199 

176.  Taxation  based  on  amount  of  business 200 

177.  Classification  based  on  different  kinds  of  liquors 201 

178    Classification  of  wholesalers,  retailers  and  manufacturers 202 

179.  Discrimination  against  liquors  manufactured  in  other  states. . .  205 

180.  Statutes  making  tax  a  lien  208 

181  Disposal  of  taxes  and  license  fees  dependent  on  statute 206 

182  Same  subject  continued 201 

183.  Regularity  of  proceeding  in  levying  tax— presumption 219 


CHAPTER  IX. 

LICENSES— NATURE   OF— LEGISLATIVE  POWERS. 

Section  184.  License  defined  212 

185.  Purpose  of  license 213 

186.  License  not  a  contract 213 

187.  No  vested  right  created  by  license— not  property 215 

188.  Same  subject— Under  New  York  statute 216 

189.  License  fee  not  a  tax — uniformity  of  taxation 217 

190.  Power  of  state  to  license — source  of 219 

191.  Construction  of  acts  generally 221 

192.  License  subject  to  laws  in  force  and  subsequently  passed 222 

193.  Repealing  acts — effect  on  licenses 223 

194.  Legislature  may  prescribe  conditions 225 

195.  Power  of  legislature  as  to  amount  of  fee 227 

196.  Payment  of  fee  and  mode  of  227 

197.  Same  subject  continued 229 

198.  Enforcing  payment  of  tax  or  fee 230 

199.  Right  to  recover  fee  paid 232 

200.  Right  to  recover  fee  continued  234 

201.  Provisions  as  to  whom  license  may  issue  to 236 

202.  License  Laws  as  affecting  druggists— Physicians 237 

203.  Local  boards  may  be  authorized  to  regulate  and  license 238 


TABLE  OF  CONTENTS.  xv 

CHAPTER  X. 

LICENSES— MUNICIPAL  POWERS. 

PAGE 

Section  204.  State  may  delegate  power  to  license  to  municipalities 240 

205.  Nature  of  power  and  exercise  of 243 

206.  Exercise  of  power  continued 244 

207.  Power  to  prescribe  penalty 245 

208.  Failure  or  refusal  of  city  to  license 246 

209.  Grants  strictly  construed— power  must  be  clearly  given 247 

210.  Must  not  exceed  power  granted 248 

211.  Must  not  discriminate — interstate  commerce 250 

212.  Power  under  general  welfare  clause  in  charter 252 

213.  Power  must  be  exercised  by  ordinance 252 

214.  Right  to  impose  fee  or  tax  generally 252 

215.  Discretion  as  to  amount  of  fee 255 

216.  Fee  must  not  be  prohibitory 255 

217.  Amount  of  fee  as  affected  by  state  fee 256 

218.  City  may  require  license  fee  although  state  also  does 267 

219.  Power  to  impose  conditions  and  make  regulations 259 

220.  Conditions  as  to  revoking 261 

221.  Prescribing  limits  for  licensing  traffic 262 

222    Ordinance  void  in  part 263 

223.  Delegation  of  power  by  municipality 264 

224.  License  subject  to  valid  ordinances 265 

225.  As  to  repeal  of  powers 266 

CHAPTER  XI. 

OBTAINING  OF  LICENSE  GENERALLY. 

Section  226.  Right  to  license  generally — renewal.   270 

227.  Strict  compliance  with  law  essential  to  right— payment  of  fee.  272 

228.  Necessity  of  obtaining  license 273 

229.  Inability  to  obtain  license— effect  of 274 

230.  Refusal  to  issue  license — effect  of 275 

231.  Form  of  license  generally 276 

232.  More  than  one  license  may  be  required 'j?r> 

233.  More  than  one  license — liquors  sold  in  connection  with  other 

business 379 

234.  Licenses  for  hotels  and  taverns 379 

235.  To  whom  license  may  issue — corporations 280 

236.  To  whom  license  may  issue — foreign  corporations 281 

237.  To  whom  license  may  issue — partners 282 

238.  To  whom  license  may  issue — women 282 

239.  Removal  permits — application  for. . .    282 


xvi  TABLE  OF  CONTENTS. 

PAGE 

Section  240.  Applicant  must  possess  requirements — fitness 283 

241.  As  to  character  of  applicant 284 

242.  As  to  the  petition  or  application 286 

243.  Time  of  filing  petition 287 

244.  Petition—description  and  location  of  premises 288 

245.  Petition— statements  as  to  applicant 289 

246.  Petition — false  statements — omission  to  answer 290 

247.  Petition — defective  amendment 291 

248.  Petition — recommendation — recommendation — signing  of. .    .  292 

249.  Petition — freeholders — who  are 295 

250.  Petition— freeholders  must  be  bona  fide 296 

251.  Notice  of  application — necessity  of 297 

252.  Notice  of  application — necessity  of  publication  of 298 

253.  Notice  of  application — sufficiency  of  publication 299 

254.  As  to  consents  generally 300 

255.  Sufficiency  of  consent — signers 301 

256.  Consents  of  owners  of  dwellings — sufficiency  and  necessity  of.  301 

257.  Exemption  from  obtaining  consents — New  York  Liquor  Tax 

Law 302 

258.  Within  certain  distance — nearest  entrance — determining   dis- 

tance and  entrance 303 

259.  Words  "  church  "  and  "  schoolhouse  "  as  used  in  license  laws 

construed 305 

260.  Remonstrances  generally 307 

261.  Remonstrances — persons  authorized  to  remonstrate 309 

262.  Remonstrances— signing  of 310 

263.  Remonstrances— right  to  withdraw  from 311 

264.  Remonstrances — form  and  sufficiency  of 312 

265.  Remonstrances — hearing  of — procedure — appeal 313 

266.  Remonstrances — burden  of  proof 315 

267.  Mode  of    testing    validity   of  license — collateral  attack — es- 

toppel    316 


CHAPTER  XII. 

LICENSING  BOARDS  AND  OFFICIALS. 

Section  268.  Granting  license  ordinarily  matter  of  discretion  318 

269.  Nature  of  discretion  and  exercise  of 321 

270.  Official's  duty  ministerial — must  issue  license 321 

271.  Compelling  issuance  of  license 323 

272.  Mandamus — what  essential  to  show  to  obtain 325 

273.  Mandamus  to  compel  issuance  of  receipt — to  compel  action  on 

application 326 

274.  Board  having  discretionary  power — right  to  appeal  from  action 

of 326 

275.  Where  appeal  allowed — parties 328 


TABLE  OF  CONTENTS.  xvii 

PAGE 

Section  276.  Where  appeal  allowed — procedure  and  practice 329 

277.  Licensing  board  must  act  in  conformity  with  powers 831 

278.  Power  of  board — time  of  granting 332 

279.  No  power  to  grant  license  to  sell  In  forbidden  locality 334 

280.  License  board  cannot  delegate  power 334 

281.  Action  by  officers  de  facto 335 

282.  Ordinance  granting  license — duty  of  official  to  sign 336 

283.  Clerks  should  not  depart  from  order  of  court  in  issuing 337 

284.  Refusal  for  violation  of  law 337 

285.  Refusal  for  violation  of  law — effect  of  conviction  or  decree. . .  339 

286.  Qualifications  of  members  of  board 339 

287.  Liability  of  members  of  board 340 


CHAPTER  XIII. 
RIGHTS  UNDER  LICENSE. 

Section  288.  Terms  of  license  as  limiting  right. 342 

289.  When  license  takes  effect 343 

290.  Duty  to  obey  law — as  to  employes 844 

291.  Licensee  may  sell  by  agent 344 

292.  Personal  representatives  of  licensee  no  rights  under 345 

293.  As  to  place  of  sale 346 

294.  Where  license  board  prescribes  unauthorized  hour9 349 

295.  License  to  firm — to  member  of 349 

296.  License  to  officer  of  corporation. ... 350 

297.  Duration  of  license 351 

298.  License  not  assignable 352 

299.  License  tax  certificate  assignable  in  New  York 353 

300.  Transfer  of  license  in  Pennsylvania 355 

301.  License  as  subject  of  levy  and  sale 356 

302.  Rights  of  licensee  as  to  stock  and  fixtures 357 


CHAPTEPw  XIY. 

REVOCATION,  SURRENDER  AND  REBATE. 

Section  303.  Right  to  revoke  generally 359 

304.  Power  of  municipality  to  revoke — as  to  rebate 361 

305.  Where  statute  specifies  causes 363 

306.  Effect  of  expiration  of  license 363 

307.  Revocation  by  repeal  of  license  law 363 

308.  Where  license  contains  provisions  as  to  forfeiture  364 

309.  Grounds  of  revocation  generally 364 


xviii  TABLE  OF  CONTENTS. 

PAGE 

Section  310.  Unlawful  sales 366 

311.  False  statements  in  application 366 

312.  Statement  as  to  continuous  occupation — suspension  by  fire  or 

accident 368 

313.  Violation  of  law — conviction  for 369 

314.  License  to  partners 371 

315.  License  to  club  organized  to  evade  law 371 

316.  License  to  hotels 371 

317.  Petition  for  revocation 375 

318.  Answer 376 

319.  Parties 376 

320.  Who  may  intervene 377 

321.  Procedure  to  revoke 378 

322.  Necessity  of  notice  of  proceeding 379 

323.  Proceedings — appointment  of  referee . .  380 

324.  Exercising  power  to  revoke — mandamus 381 

325.  Evidence 381 

326.  Staying  proceedings  381 

327.  Not  entitled  to  trial  by  jury 382 

328.  Costs  of  proceedings 382 

329.  Reviewing  action — certiorari 383 

330.  Right  to  rebate— no  statute 384 

331.  Right  to  rebate — where  statute 385 

332.  Surrender— right  to  rebate — New  York 385 

333.  Surrender— right  to  rebate— New  York 387 

334.  Procedure  to  obtain  rebate— New  York 387 

335.  Right  to  rebate — mandamus — New  York 388 

336.  Right  of  assignee  to  rebate — receiver 389 

337.  Right  of  licensee  as  affected  by  acts  of  employee— revocation — 

rebate 390 

338.  Effect  of  surrender  before  violation 391 


CHAPTER  XV. 

BONDS. 

Section  339.  "Where  bond  required  by  law 393 

340.  Construction  of — extent  of  liability 395 

341.  Effect  of  repeal  of  law 396 

342.  Approval  and  filing  of 396 

343.  Power  of  board  in  approving — as  to  filing — mandamus 397 

344.  Bond  need  not  strictly  conform  to  statute 399 

345.  Recitals — misrecitals 400 

346.  Effectof  blanks 400 

347.  As  to  the  sureties 401 

348.  Amount  of  bond 401 

349.  Condition  against  violating  statute 402 


TAIJLI-;  OF  CONTENTS.  xix 

PAGE 

Section  350.  Same  subject — conviction  for 408 

351.  Condition  as  to  gambling   404 

352.  Sales  to  minors 404 

353.  Sales  on  Sunday ....    406 

354.  In  case  of  licenses  to  hotels 406 

855.   payment  of  fines  and  costs 407 

356.  Acts  by  agent  of  licensee 408 

357.  False  statements  in  application 408 

358.  Surety  not  liable  after  surrender  of  certificate.  . 409 

359.  Conditions  not  required  by  law 409 

360.  Liability  for  judgment 410 

361.  Bond  only  binding  as  to  place  named 410 

302.  Release  of  liability — discharge  of  sureties — collateral  agreement  411 

363.  Actions  upon  generally 411 

364.  Parties  to  actions  on 413 

365.  Pleading 414 

366.  Evidence  in  action  on 415 

367.  Right  to  question  validity  of  bond 415 


CHAPTER   XVI. 

LOCAL  OPTION  LAWS  GENERALLY. 

Section  368.  Local  option  laws — constitutionality  of  generally 417 

369.  Same  subject — not  a  taking  of  property   420 

370.  Same  subject — not  special  or  class  legislation — uniform  and 

general 421 

371.  Same  subject — not  a  delegation  of  legislative  power 422 

372.  Local  option  laws — construction  of  generally 424 

373.  Constitutional  provisions  as  to 425 

374.  Local  option  laws  as  repealing  prior  law 426 

375.  Local  option  law  merely  suspends  prior  laws 427 

376.  Effect  of  adoption  on  license  laws  429 

377.  Effect  of  adoption — resident  of  local  option  territory  may  pur 

chase  in  wet  territory  for  own  use 431 

378.  Bindiug  effect  of  vote  on  entire  subdivision  433 

379.  Same  subject — where  boundaries  changed 135 

380.  Statement  of  consent — Iowa 436 


CHAPTER  XVII. 
LOCAL  OPTION  ELECTIONS. 

Section  381.  As  to  the  petition  generally , 439 

382.  Sufficiency  of  petition 441 

383.  Petition — as  to  signers  of 442 


.xx  TABLE  OF  CONTEXTS. 


PAGE 


Section  384.         "      — presumption  as  to  signers — burden  of  proof 444 

385.  Petition — duty  of  officials  as  to  determining  sufficiency  of  sig- 

natures    445 

386.  Election — order  for  generally 446 

387.  "       — order  for  need  not  state  exceptions  as  to  sales 447 

388.  Election — order  for — errors  and  omissions  in 447 

389.  Election — order  for — designating  locality  in 448 

390.  Order — record  as  to 449 

391.  Notices  of  election — publication  and  posting  of  generally 449 

392.  Same  subject — manner  and  mode  of  publication 451 

393.  Same  subject — presumption  as  to — burden  of  proof 452 

394.  Effect  of  irregularities  in  connection  with  preliminaries  to  elec- 

tion    453 

395.  Election — provisions  as  to  time  of  holding  of 454 

396.  Same  subject — time  prescribed  with  reference  to  another  elec- 

tion   454 

397.  Election — manner  of  holding — generally 455 

398.  Same  subject — as  to  the  election  officials 456 

399.  Same  subject — as  to  the  hours  polls  are  open 457 

400.  Same  subject — as  to  the  voters •. 457 

401.  Same  subject — as  to  the  ballots  and  ballot  boxes 458 

402.  As  to  the  ballots  continued 458 

403.  Returns  of  election — certification  459 

404.  Order  declaring  result  of  election — presumption  as  to  prelim- 

inary steps 461 

405.  Sufficiency  of  order  declaring  result  462 

406.  Same  subject — errors  in  connection  with 462 

407.  Same  subject — record  as  to 463 

408.  Result  of  election  where  statute  requires  publication  of 463 

409.  Result  of  election — publication  for  four  successive  weeks 464 

410.  Result  of  election — statute  silent  as  to  time  or  manner  of  pub- 

lication     465 

411.  Result  of  election — presumption  and  evidence  as  to  publica- 

tion   465 

412.  Contest  of  election— nature  of  right— statutes 466 

413.  Contest  of  election— proceedings 467 

414.  Who  may  contest  election 469 

415.  Resubmission  of  question 469 

416.  "  "         "         continued — procedure 470 

417.  Conclusiveness  of  declaration  of  result — collateral  attack 470 

418.  Judicial  notice  of  adoption— necessity  of  proof  of  471 

419.  Proof  of  adoption  of  local  option— sufficiency  of 473 

CHAPTER  XVIII. 

CTVIL  DAMAGE  ACTS. 

Section  420.  Civil  damage  acts — constitutionality  of 476 

421.   Construction  of  acts  generally   477 


TABLE  OF  CONTENTS  xxi 

Section  422.  Same  subject — application  of  rules 47:1 

423.  "  Person  aggrieved  "—"or  other  persons" 480 

424.  Statute  no  extra-territorial  effect 481 

425.  License  qo  protection  against  operation  of  statute 

426.  Effecl  of  repeal  of  statute— subsequent  acl  as  to  notice 4#2 

427.  Sale  must  be  unlawful 4gg 

428.  Negligence  and  contributory  negligence  484 

429.  Intoxication  must  be  proximate  cause 484 

430.  Proximate  cause — application  of  rule. . . 485 

431.  Proximate  cause— -where  intoxicated  person  commits  a  crime 

and  is  imprisoned   487 

432.  Proximate  cause— intoxicated  person  injured  or  killed  as  re- 

sult of  altercation 4gg 

433.  Proximate  cause — question  for  jury 490 

434.  Sale  must  have  contributed  to  or  caused  intoxication— proxi- 

mate cause— must  be  sale  to  individual  causing  injury  . . .  490 

435.  Sale  by  defendant  need  not  be  sole  cause 492 

436.  Sales  by  agent  of  defendant  494 

437.  Sales  by  agent  of  defendant — exemplary  damages 495 

438.  Sale  by  agent— sale  of  business  to  him  not  bona  fide 495 

439.  Joint  liability  of  defendant 495 

440.  Joint  liability  of  defendant  but  one  satisfaction 497 

441.  Owner  or  lessor— statute  making  him  liable— construction  of. .  498 

442.  Owner  bound  by  knowledge  of  agent 502 

443.  Owner  or  lessor — exemplary  damages 503 

444.  Owner — extent  of  lien  against 505 

445.  Notice  not  to  sell 506 

446.  Notice  not  to  sell— effect  on  damages 508 

447.  Sale  to  prohibited  classed  generally— minors— intoxicated  per- 

sons   508 

448.  Sales  to  minors — action  by  parents  generally 510 

449.  Sales  to  minor — action  by  father 511 

450.  Sales  to  minor — action  by  mother 511 

451.  Sales  to  minor — consent  of  parents  as  bar 512 

452.  Sales  to  minor — exemplary  damages 513 

453.  Sales  to  habitual  drunkards  513 

454.  Sales  to  intoxicated  persons 515 


CHAPTER  XIX. 
CIVIL  DAMAGE  ACTS— Continubd. 

Section  455.  Who  may  bring  action  generally 518 

456.  Against  whom  action  may  be  brought  generally 518 

457.  Complaint  or  declaration  520 

458.  Evidence  generally 521 

459.  Evidence— proof  by  plaintiff— preponderance  sufficient 521 


xxii  TABLE  OF  CONTENTS. 

PAGE 

Section  460.  Evidence — facts  established  by  circumstances. 522 

461.  Evidence  generally  showing  sale 523 

462.  Evidence— life  tables  524 

463.  Injury— to  the  feelings — mental  anguish — disgrace 525 

464.  Medical  attendance  as  element  of  damages  527 

465.  Exemplary  damages  generally 527 

466.  Exemplary  damages — statutes  as  to 529 

467.  Exemplary  damages — ground  for  awarding— right  to 530 

468.  Exemplary  damages — no  breach  of  peace .  531 

469.  Excessive  damages 531 

470.  Injury  to  person  or  property  generally 532 

471.  Statute  as  to  allowance  for  taking  care  of  person 533 

472.  Means  of  support — where  legal  obligation 534 

473.  Injury  to  means  of  support  generally — action  by  wife 535 

474.  Means  of  support — right  of  action  generally — defenses 537 

475.  Means  of  support — income  of  wife  or  ability  to  labor  imma- 

terial , . .  538 

476.  Means  of  support — action  by  wife — effect  of  divorce 539 

477.  Means  of  support — action  by  wife — pleading 539 

478.  Means  of  support — action  by  wife — evidence  of  earnings  and 

financial  condition 540 

479.  Means  of  support — action  by  wife — evidence  as  to  prior  con- 

duct   541 

480.  Action  by  wife— evidence  as  to  age  and  number  of  children . .  541 

481.  Means  of  support — action  by  wife — measure  of  damages — evi- 

dence     542 

482.  Action    by    wife — physical    suffering — threats — abusive  lan- 

guage    545 

483.  Action  by  wife — assault  by  husband 545 

484.  Action  by  wife — injury  to  property 546 

485.  Action  by  wife — consent  or  acquiescence  of ...  547 

486.  Action  by  wife — consent  or  acquiescenee  of  continued 548 

487.  Action  by  widow — death  of  husband 549 

488.  Action  by  widow — death  of  husband  continued  552 

489.  Action  by  widow— husband  killed  by  intoxicated  person 553 

490.  Action  by  wife — exemplary  damages 553 

491.  Means  of  support  of  mother — sale  to  son 554 

492.  Action  by  mother  in  behalf  of  her  and  children— joint  action. .  555 

493.  Means  of  support— action  by  children 556 

494.  Action  by  husband 557 

495.  Death  of  intoxicated  person— no  recovery  by  personal  repre- 

sentatives     558 

496.  Action  by  intoxicated  person 558 

497.  Assault  by  intoxicated  person 559 


TABLE  OF  CONTENTS.  xxiii 

CHAPTER   XX. 
SEARCH  AND  SEIZURE  LAWS. 

PAGE 

Section  498.  Search  and  seizure  laws  generally — constitutionality  of  gen- 
erally    502 

499.  Not  a  taking  of  private  property  for  public  use  564 

500.  Not  invalid  as  denying  right  of  trial  by  jury 565 

501 .  Statutes  as  to  generally 566 

502.  Particular  statutes  construed 567 

503.  Limitations  on  powers 568 

504.  Limitations  on  power  and  exercise  of  continued 500 

505.  Liquor  which  may  be  seized  generally  569 

506.  Liquors  in  hands  of  bailee  571 

507.  Seizure   of   liquors   in    transitu — of  property   used  in    trans 

porting 071 

508.  Liquors  shipped  into  prohibited  districts— seizure  in  hands  of 

carrier 57-2 

509.  Liquors  shipped  in  prohibited  territory — contract  of  sale  com- 

pleted there 572 

510.  Liquor  shipped  from  another  state — Iowa 573 

511.  Liquor  shipped  from  another  state — Maine 574 

512.  Liquor  shipped  from  another  state — South  Carolina  575 

513.  Liquor  shipped  from  another  state — Vermont 575 

514.  Liquor  shipped  from  another  state — United  States 576 

515.  Liquor  shipped  from  another  state — conclusion 577 

516.  Seizure  of  property  in  connection  with  liquors 578 

517.  Complaint  generally ....  579 

518.  Sworn  complaint 580 

519.  Warrant  generally   580 

520.  Warrant  and  complaint  in  one  instrument 582 

521.  Variance  between  complaint  and  warrant 582 

522.  AVho  may  complain 583 

523.  Alleging  probable  cause 584 

524.  Allegations  as  to  liquors— kinds  and  quantities 584 

525.  Allegation  as  to  intent— keeping  for  unlawful  sale 586 

526.  Allegations  as  to  owner  or  keeper 587 

527.  Description  of  place  to  be  searched 587 

528.  Description  of  place  to  he  searched— continued 589 

529.  Description  of  place  to  be  Bearched— rules  illustrated 590 

530.  Time  or  service  of  warrant    591 

531.  Search  and  seizure  without  warrant— generally 591 

532.  Same  subject — allegations  in  complaint  and  warrant 592 

533.  As  to  arrest  of  person  having  liquors  in  possession 593 

534.  Arrest  without  warrant  594 

535.  Effect  of  seizure  of  more  liquors  than  authorized 594 

536.  Notice  of  seizure  595 

537.  Claimants— effect  of  appearance— waiver  of  defects 595 


xxiv  TABLE  OF  CONTENTS. 

PAGE 

Section  538.  Power  and  liability  of  officer  serving — generally 597 

539.  Power  of  officer — as  to  place  of  search 598 

540.  Liability  of  officer — concluded 600 

541.  Duty  of  officer  as  to  keeping  of  liquors 601 

542.  Acts  of  officer  de  facto 601 

543.  Officer's  returns 601 

544.  Actions  to  recover  liquor  seized — replevin  602 

545.  Nature  of  proceedings  for  forfeiture — proceedings  in  rem ... .  604 

546.  Same  subject — whether  civil  or  criminal 605 

547.  Proceedings  for  forfeiture  and  punishment  of  offender  separate.  606 

548.  No  defense  that  intent  was  that  of  agent  of  owner 606 

549.  Finding  as  presumptive  evidence  of  unlawful  keeping — statutes  607 

550.  Evidence  generally 608 

551.  Proceedings  for  forfeiture — judgment  for 609 

552.  Right  to  return  of  liquors  seized 611 


CHAPTER   XXI. 

PENALTIES. 

Section  553.  Statutes  as  to  penalties — generally 612 

555.  Ordinance  as  to  penalties — generally 613 

555.  Contesting  validity  of  ordinance 613 

536.  Sales  to  minors 614 

557.  Sales  by  druggists 614 

558.  Nature  of  proceeding 615 

559.  Who  may  enforce 616 

560.  Officials  designated  cannot  delegate  power 618 

561.  For  whose  benefit  recoverable 619 

562.  Method  of  recovery  prescribed  by  statute  ....  619 

563.  Recovery  generally — proceeding  for 620 

564.  Recovery — extent  of 620 

565.  Persons  liable  for 621 

566.  Liability  of  sureties  on  bond 621 

567.  Complaint 622 

568.  Answer 623 

569.  Evidence — admissibility 623 

570.  Evidence — burden  of  proof 624 

571.  Defenses 625 

572.  Where  violation  induced  or  procured  by  officials. 625 


TABLE  OF  CONTENTS.  xxv 

CHAPTER  XXII. 
SALES  BY  SOCIAL  CLUBS. 

PAGE 

Section  573.  Sales  by  social  clubs,— generally 629 

574.  Alabama 629 

575.  California 630 

576.  Colorado . 

577.  District  of  Columbia 632 

578.  Georgia 633 

579.  Illinois , <;:, ; 

580.  Indiana 635 

581.  Iowa r,::> 

582.  Kansas 636 

583.  Kentucky r,: ; ; 

584.  Louisiana  637 

585.  Maine 638 

586.  Maryland 638 

587.  Massachusetts 640 

588.  Michigan 643 

589.  Minnesota 64H 

590.  Mississippi til) 

591 .  Missouri 645 

592.  Montana 645 

593.  Nebraska 646 

594.  New  Jersey 646 

595.  New  York 640 

596.  North  Carolina 648 

597.  Oregon 64U 

598.  Pennsylvania 649 

599.  South  Carolina 651 

600.  Tennessee 652 

601.  Texas  653 

602.  Virginia 65i 

603.  Washington  653 

604.  West  Virginia 65 

605.  United  States 654 

606.  England  655 

007.  Conclusion 657 


CHAPTER    XXIII. 
INJUNCTION  AND  ABATEMENT. 

Section  608.  When  traffic  a  nuisance— generally 659 

609.  Right  of  individuals  to  abate  660 

610.  Injunction  and  abatement— statutes  as  to  constitutional 661 


xxvi  TABLE  OF  CONTENTS. 

PAGE 

Section  611.  Particular  statutes  construed 662 

612.  Statute  authorizing  proceeding  in  equity  663 

613.  Municipal  powers  generally 663 

614.  Nature  of  proceeding 664 

615.  Remedy  by  in j  auction— generally 665 

616.  Injunction — instances 667 

617.  Temporary  injunction 667 

618.  Right  of  individual— private  nuisance 668 

619.  Right  to  a  second  injunction 668 

620.  Who  may  be  enjoined 669 

621.  Injunction  against  owner  of  building— when  granted 669 

622.  Injunction  against  owner  of  building— when  not  granted 670 

623.  Covenant  not  to  sell  liquors — enjoining  breach  of 671 

624.  Who  may  institute  proceedings 673 

625.  Petition — form  and  sufficiency  of 674 

626.  Answer 675 

627.  Evidence 675 

628.  Defenses— generally 676 

629.  Effect  of  discontinuance  of  nuisance 677 

630.  Judgment  or  decree 678 

631.  Modifying  decree 679 

632.  Contempt— proceedings  to  punish  for— nature  of 679 

633.  Contempt— sufficiency  of  information 681 

634.  Contempt— what  constitutes •  •  681 

635.  Effect  of  appearance  in  court— contempt 682 

636.  Conviction  as  prerequisite  to  abatement 683 


CHAPTER  XXIV. 

INDICTMENTS  AND  INFORMATIONS. 

Section  637.  Charging  the  offense— generally 685 

638.  Charging  the  offense — application  of  general  rules 686 

639.  Errors  in  spelling 688 

640.  Defendants— joinder  of 688 

641.  Name  of  accused 688 

642.  Charging  class  to  which  defendant  belongs 689 

643.  Name  of  purchaser  of  liquor 690 

644.  Allegation  as  to  purpose  for  which  sold 692 

645.  Stating  offense  in  caption 693 

646.  Indictment  must  not  charge  disjunctively  693 

647.  Where  statute  is  in  disjunctive— use  of  conjunctive 694 

648.  Surplusage  does  not  vitiate 695 

649.  Matters  of  evidence 696 

650.  Matters  of  defense 696 

697 


651.  Want  of  a  license. 


TABLE  OF  CONTEXTS.  xxvii 

PAGE 

NOiXDag  652.  Sale  to  minor — want  of  consent  of  parent  or  guardian 697 

653.  Averment  as  to  place — generally 698 

654.  Averment  as  to  place  continued 699 

655.  Averment  as  to  place — description  of  building 699 

656.  Charging  time  of  offense — generally 700 

657.  Precise  time  not  essential 701 

658.  Offences    consisting  of   succession  of  acts — charging  with  a 

continuando 702 

659.  Time  of  essence  of  offense — sale  on  Sundays 702 

660.  Sales  on  election  day 71  13 

661.  Knowledge— intent To  1 

662.  General  rule  as  to  charging  in  language  of  statute 705 

663.  Exceptions  in  statute — rule  as  to 707 

664.  Exceptions  in  statute — application  of  rule , 708 

665.  Duplicity 709 

666.  Indictments  not  duplicitious 709 

667.  Joinder  of  offenses 711 


CHAPTER  XXV 

EVIDENCE. 

Section  668.  Burden  of  proof  generally 712 

669.  Writings,  documents  and  records  as  evidence 713 

670.  Evidence  as  to  license  714 

671.  Circumstantial  evidence 715 

672.  Circumstantial  evidence  continued 716 

673.  Whether  liquor  intoxicating — burden  of  proof 716 

674.  Whether  liquor  intoxicating — evidence  as  to  717 

675.  Evidence  as  to  kind  of  liquor 718 

676.  Evidence  as  to  place  718 

677.  Evidence  as  to  time  71($ 

'678.  Sales  on  Sunday . . . . , 720 

679.  Evidence  as  to  keeping  open  on  Sunday 721 

680.  Intent  knowledge  or  good  faith  on  part  of  defendant 722 

681.  As  to  keeping  place  for  unlawful  selling — liquor  nuisance.  .. .  724 

682.  As  to  liquors  kept  for  unlawful  sale 725 

683.  License  from  United  States . . .  727 

684.  As  to  sales  to  prohibited  classes 728 

685.  Burden  of  proof — defenses 729 

686.  Burden  of  proof — license  or  authority  to  sell 731 

687.  As  to  violation  of  instructions  by  agent 732 

688.  Sale  by  an  agent — evidence  showing  may  be  sufficient 733 


TABLE  OF  CASES. 


THE  REFERENCES  ARE  TO  SECTIONS. 


SECTIONS 

Aaron  v.  State,  34  Tex.  Cr.  103 378,  397 

Abbott  v.  Sartori,  57  Iowa,  656 557 

Abrams  v.  Sandholm,  119  Iowa,  583 625 

Acken  v.  Inglekoff  (Neb.  1909),  119  N.  W.  456 435,  462,  481,  482 

Adams  v.  Cronin,  29  Colo.  488 114 

Adams  v.  Gormley,  69  Ga.  743 268 

Adams  v.  Hackett,  27  N.  H.  289 187,  193 

Adams  v.  Kelly,  17  Tex.  Civ.  App.  479 378 

Adams  v.  Mayor  of  Albany,  29  Ga.  36 145 

Adams  v.  McGlincby,  66  Me.  474 519 

Adams  v.  Miller,  81  Miss.  613 365 

Adams  v.  Smith  (Ind.  S.  C.  1910),  90  N.  E.  625 259,  266 

Adams  v.  Stephens,  88  Ky.  443 225 

Adams  Express  Co.  v.  Commonwealth,  124  Ky.  182 53,     57 

Adams  Express  Co.  v.  Iowa,  196  Iowa  147 54 

Adams  Express  Co.  v.  Kentucky,  214  IT.  S.  218 48,  49,  53,     57 

Adams  Express  Co.  v.  Kentucky,  206  U.  S.  129 58 

Adler  v.  State,  55  Ala.  16 12,     13 

Adler  v.  Whitbeck,  44  Ohio  St.  539 45,  63,  173,  174,  184 

Adriance,  Matter  of,  59  App.  Div.  (N.  Y.)  440 354 

Akin  v.  State,  14  Tex.  App.  142 381 

Albany  Brewing  Co.  v.  Ban  k ley,  42  App.  Div.  (N.  Y.)  335 334 

Albertson  v.  Wallace,  81  N.  C.  479 176 

Albia  v.  O'Harra,  64  Iowa  297 676 

Albrecht  v.  State,  62  Miss.  516 366 

Albrecht  v.  State,  8  Tex.  App.  216 176 

Albrecht  v.  Walker,  73  111.  69 465 

Aldrich  v.  Harvey,  50  Vt,  162 455 

Aldrich  v.  Parnell,  L47  Mas..  409 440 

Aldrich  v.  Sager.  9  Hun  (N.  Y.)  537 ■. 464 

Alexander  v.  State,  77  Ark,  294,  297 227,  330 

Alexander  v.  State,  29  Tex.  295  637 

Alsrer  v.  Weston,  14  Johns  231 298 

Allen  v.  Houck  &  Dreter  Co.   (Tex.   Civ.   App.    1906),  92  S.    W.   993,  996 

340.  842,  3G6 

xxi\ 


xxx  TABLE    OF    CASES. 

SECTIONS 

Allen  v.  Staples,  6  Gray  (Mass.)  491 498,  519,  544 

Allentown  v.  Gross,  132  Pa.  St.  319 214 

Allman  v.  State,  69  Ind.  387 644 

Allred  v.  State,  89  Ala.  112  7,  12,  13,  41 

Allsnian  v.  Oklahoma  City,  21  Okla.  142 331 

Allyn.  Appeal  of,  81  Conn.  534 47,  81,  83,  195 

Altenburgh  v.  Commonwealth,  126  Pa.  St.  602 112,  113 

Ambrose  v.  State,  6  Ind.  351 153 

American  Express  Co.  v.  Iowa,  196  U.  S.  133 54 

American  Surety  Co.  v.  State  (Ind.  A.  C.  1909),  90  N.  E.  99 487 

American  Woolen  Co.  v.  North  Smithfield,  28  R.  I.  546 258,   261 

Amerman  v.  Hill,  52  N.  J.  L.  326 234 

Amperse  v.  Kalamazoo,  59  Mich.  78 238 

Amperse  v.  Winslow,  75  Mich.  234 343 

Anderson  v.  Brewster,  44  Ohio  St.  576 190 

Anderson  v.  Commonwealth,  13  Bush.  485 83 

Anderson  v.  Commonwealth,  105  Va.  533 345,  349,  363 

Anderson  v.  State,  39  Ind.  553 688 

Anderson  v.  Van  Buren,  Circuit  Judge,  130  Mich.  695,  697. .. .  637,  638,  643,  662 

Anderson  &  Co  v.  Diaz,  77  Ark.  606 423 

Andreas  v.  Beaumont  (Tex.  Civ.  1908),  113  S.  W.  614 221 

Andresen  v.  Jetter,  76  Neb.  520 457 

Androscoggin  Railroad  Co.  v.  Richards,  41  Me.  233 505,  539 

Anheuser-Busch  Brewing  Co.  v.  Fullerton,  83  Iowa  760 544 

Anthony  v.  Krey,  70  Mich.  629 365,  456 

Applegate  v.  Winebrenner,  67  Iowa.  235 483 

Applegate  v.  Winebrenner,  66  Iowa  67 624 

Application  of  Henry  In  re,  124  Iowa  358 268 

Application  of  King  In  re,  72  Neb.  576 291 

Application  of  Smith,  126  Iowa  128 240,  275 

Arberry  v.  Beavers,  6  Tex.  473 272 

Archer  v.  State,  10  Tex.  App.  482 668 

Arie  v.  State  (Okla.  1909),  100  Pac.  23 186,  307 

Arizona  v.  Connell,  2  Ariz.  339 175 

Arlstock  v.  Page,  77  Va.  386 269 

Army  &  Navy  Club  v.  District  of  Columbia,  8  App.  D.  C.  544 577 

Arnett  v.  Wright,  18  Okla.  337 298 

Arnold  v.  Barkalow,  73  Iowa  183 444 

Arnold,  Matter  of,  32  Misc.  R.  (N.  Y.)  439 402 

Arlington  v.  Commonwealth,  87  Va.  96 649,  653,  657 

Arthur  v.  Flanders,  10  Gray  (Mass)  107 540 

Arszman  In  re,  40  Ind.  App.  218 156 

Aschenback  v.  Carey  (Pa.  1909),  73  Atl.  435 292 

Ashley  v.  State,  92  Ind.  559  643 

Assaria  v.  Wells,  68  Kan.  787 137 

Atkins  v.  State,  60  Ala.  45 685 

Atkins  v.  Town  of  Randolph,  31  Vt.  226 83,     96 

Attorney  General  v.  Huebner,  91  Mich.  436 339 

Attorney  General  v.  Justices,  27  N.  C.  315 269,  271,  287 

Attorney  General  v.  Lawton,  30  Mich.  386 130 


TABLE    OF    CASES. 


xxxi 


B£(   l  [Ol  - 

Aulanier  v.  The  Govnor,  1  Tex.  653 l'.is 

Austin  v.  Atlantic  City,  48  N.  J.  L.  118 250 

Austin  v.  State,  10  Mo.  591 201 . 

B 

Babb's  License,  2  Pa.  Super  Ct.  38 241 

Backes  v.  Dant,  55  Ind.  181  487 

Backman  v.  Brown,  57  Mo.  App.  68 565 

Backman  v.  Phillipsburg,  68  N.  J.  L.  552 25u 

Bacon  v.  Jacob,  63  Hun  (N.  Y.)  51 421 

Badgett  v.  State  (Ala.  1908),  48  So.  54 41k 

Baeumel  v.  State,  26  Fla.  71 664,  686 

Bailey  v.  Raleigh,  130  N.  C.  209,  213 199,  204 

Bailey  v.  State,  30  Neb.  855 .155 

Bailey  &  Mease  v.  Nester's  Licenses,  5  Pa.  Dist.  R.  172 242,  247 

Bain  v.  State,  67  Miss.  554 403 

Baker  v.  Bechurth,  29  Ohio  St.  314 427 

Baker  v.  Bourcicanet,  1  Daly  (N.  Y.)  24 510 

Baker  v.  Bucklin,  43  App.  Div.  336 199 

Baker  v.  McCoy,  58  Iowa  216. 439 

Baker  v.  Pope,  2  Hun  556 420 

Baker  v.  Summers,  201  111.  52 458 

Baldwin  v.  Smith,  82  111.  162 146,  224 

Balleutine  v.  State,  48  Ark.  45 309,  314 

Ballew  v.  State,  84  Ga.  138 .'  248 

Balogh  v.  Lyman,  6  App.  Div.  (N.  Y.)  271 173 

Bancroft  v.  Dumas,  21  Vt.  456 370 

Barbier  v.  Connolly,  113  U.  S.  27 44 

Barkam  v.  State,  41  Tex.  Cr.  188 407 

Barker  v.  State,  118  Ga.  35  70,  71,  83 

Barker  v.  State,  117  Ga.  428 648 

Barks  v.  Woodruff,  12  111.  App.  96 484 

Barnaby  v.  Wood,  50  Ind.  405 420,  436,  441,  477 

Barnard  v.  Graham,  120  Ind.  135 242,  244 

Barnard  v.  Houghton's  Estate,  34  Vt.  264 122 

Barnard  v.  State  (Ala.  1909),  48  So.  483 298,  301 

Barnard,  Matter  of,  48  App.  Div.  (N.  Y.)  423 288,  311 

Barnegat  Beach  Ass'n  v.  Busby,  44  N.  J.  L.  627 268,  274 

Barnes  v.  Commissioners,  135  N.  C.  27 271 

Barnes  v.  Rhoades  (Ind.  1909),  87  N.  E.  643 264 

Barnes  v.  State,  49  Ala.  342 103.  293 

Barnes  v.  State,  19  Conn.  398 687 

Barnesville  v.  Means,  128  Ga.  197 386 

Barnesville,  City  of,  v.  Murphy,  113  Ga.  779 145 

Barrett  v.  Dolan,  130  Mass.  366 487 

Barringer  v.  Florence,  41  S.  C.  501 209 

Barry  County  v.  Sherman  (Mo.  App.  1910),  125  S.  W.  781 348 

Bartel  v.  Hobson,  107  Iowa.  644 635 


xxxii  TABLE    OF    CASES. 


SECTIONS 


Bartemever  v.  Iowa,  18  Wall.  (TJ.  S.)  129 86 

Barth  v.  State,  18  Conn.  431,  432 637,  646,  662 

Barton  v.  Leate,  43  Fla.  477 k 419 

Bates  v.  Davis,  76  111.  22,  21 465 

Bates  v.  Dunning,  49  Conn.  479 268 

Baton  Rogue  v.  Butler,  118  La.  73 :   134 

Bankhart  v.  Freeborn,  42  Ohio  St.  52 112 

Bauer  v.  Board  of  Denmark.  T.  p.  (Mich.  1909)  122  K  W.  121 391 

Baxter  v.  State,  49  Oreg.  353 368,  375,  378 

Beaman  v.  Adams,  76  HI.  331 422 

Bean  v.  Green,  33  Ohio  St.  444 490 

Beane  v.  State,  72  Ark.  368  688 

Beards  Appeal,  64  Conn.  526 275 

Beaty  Ex.  parte,  21  Tex.  App.  426 386 

Beauvoir  Club  v.  State,  148  Ala.  643 71,  81,  118,  574 

Beckerle  v.  Brandon,  229  111.  323 451 

Beckham  v.  Howard,  83  Ga.  89 210,  268 

Beckman  v.  Charlestown.  42  N.  H.  125 98 

Bedore  v.  Newton,  54  N.  H.  117 420 

Beele  v.  The  State,  6  Ind.  501 86 

Beem  v.  Chestnut,  120  Ind.  390 482 

Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  32 77,  80,  86 

Beers  v.  Walhizer,  43  Hun  (N.  Y.)  254 431 

Beeses'  License,  28  Pa.  Co.  Ct.  R.  353 300 

Behler  v.  Ackley  (Ind.  N.  C.  1909),  89  N.  E.  877 263,  264 

Bell  v.  State,  91  Ga.  227 22,  374 

Bell  v.  State,  28  Tex.  App.  96 82 

Bell  v.  Watson,  3  Lea.  (Tenn.)  328  173 

Bell  Ex  parte,  24  Tex.  App.  428 81,  83,  339 

Bellison  v.  Apland,  115  Iowa,  599 439,  473 

Bell's  Gap.  R.  Co.  v.  Pennsylvania,  134  U.  S.  238 44 

Benalleck  v.  People,  31  Mich.  200  559,  567 

Bennett  v.  Miller's  Estate  (Mich.  1910),  125  N.  W.  2 447,  487 

Bennett  v.  Otto,  68  Neb.  652 250,  276 

Bennett  v.  People,  30  111.  389 17,  218 

Benson  v.  Moore,  15  Wend.  (N.  Y.)  260 288 

Benson  v.  State.  39  Tex.  Cr.  App.  56 

Bergman  v.  Cleveland,  39  Ohio  St.  651 163 

meyer  v.  Greenup  County,  19  Ky.  Law  Rep.  1599 193,  200 

Berkehenner  v.  State  (Ind.  A.  C.  1909),  88  N.  E.  634 454 

Berry  v.  Cramer,  58  N.  J.  L.  278 216 

Bertholf  v.  O'Reilly,  74  N.  Y.  509,  524 81,  420,  434,  441 

Bertholf  v.  O'Reilly,  8  Hun  (N.  Y.)  16 428 

Bertrand  v.  State,  73  Miss.  51 37,  40 

Bertrand,  Matter  of,  40  Misc.  R.  (N.  Y.)  536 416 

Betting  v.  Hobbett,  142  HI.  72 454,475,478 

Bilbro  v.  State,  7  Humph  (Tenn.)  334 661 

Billings  v.  State,  41  Tex.  Cr.  App.  253 677 

Bills  v.  State  (Tex.  Cr.  1909),  117  S.  W.  835 418 

Bingham  County  v.  Fidelity  and  D.  Co.,  13  Ida.  34 228 


TABU-:    OF    CASES. 


XXXlll 


SECTIONS 

Birknuin  v.  Fahrenltold  (Tex.  Civ.  App.  1908),  114  S.  W.  829 482 

Birmingham  v.  People,  40  Colo.  302 879 

Bissell  v.  Starzinger,l  12  Iowa,  266 4.-,:',,  .\<jr, 

Bistline  v.  Ney  Bros.,  184  Iowa  172 429,  458 

Black  v.  Jacksonville,  Town  of,  36  111.  801 84 

Black  v.  McGilvery,  88  Me.  287 516,  61  I 

Blackwell  v.  Commonwealth,  21  Ky.  Law  Rep.  1240 419 

Blackwell  v.  State,  36  Ark.  178 383,  65 1 

Blaisdell  V.  Hewitt.  3  ( 'nines,   137 653 

Blatchley  v.  Moses,  15  Wend.  (N.  Y.)  215 571 

Blatz  v.  Rohrhach,  116  N.  Y.  490  18,  19,  20,  22,  32 

Blair  v.  Kilpatrick,  40  Ind.  312 276 

Blankership  v.  State,  93  Ga.  814 41 

Block  v.  Jacksonville,  Town  of,  36  111.  301,  304,  305 84 

Block  v.  State,  66  Ala.  493 638,  654 

Blodget  v.  State,  3  Ind.  403 643 

Bloedel  v.  Zimmerman,  41  Neb.  695 493 

Bloomer  v.  Glendy,  70  Iowa,  757 627 

Blumenthals'  Petition,  125  Pa.  St.  412 292,  298,  300 

Board  v.  Buchanan,  36  Tex.  Civ.  App.  411  389 

Board  of  Commissioners  v.  Doherty,  16  How.  Prac.  (N.  Y.)  46 559 

Board  of  Commissioners  v.  Freehoff,  17  How.  Prac.  (N.  Y.)  442 18 

Board  of  Commissioners  v.  Kreuger,  88  Ind.  231 200 

Board  of  Commissioners  v.  Taylor,  21  N.  Y.  173,  178 3,  4,  20 

Board  of  Commissioners  of  Excise  v.  Backus,  29  How.  Prac.  (N.  Y.)  33 572 

Bi  >ard  of  Education  v.  Aberdeen,  56  Miss.  518 182 

Board  of  Excise  v.  Barrie,  34  X.  Y.  657 194 

Board  of  Excise  v.  Sackrider,  35  X.  Y.  156 560 

Board  of  Trustees  v.  Scott,  30  Ky.  Law  Rep.  894 79,  175,  378 

Board  of  Trustees  v.  Watson,  5  Bush.  660 134 

Boches  v.  State,  33  Tex.  Cr.   96 660 

Bode  v.  State,  7  Gill,  626 642 

Bodge  v.  Hughes,  53  N.  H.  614  497 

Bogard  v.  State  (Tex,  Cr.  App.  1908),  53   S.  W.  494 653 

Bohler  v.  Schneider,  49  Ga.  195 173,  178 

Bohrmann's  Appeal,  81  Conn.  458  239 

Boldt  v.  State,  60  Ark.  600 :;;  I 

Boldt  v.  State,  72  Wis.  7 662 

Bolduc  v.  Randall,  lor  Mass.  121 

Bolton  v.  Becker  (Neb.  1908),  119  X.  W  111 284 

Bolton  v.  Hegner  (Neb.  1908),  118  N.  W.  1098 241,  284 

Bonacher  v.  State,    12  Fla.  848 ::7i; 

Bond  v.  State,  47  Miss.  39 686 

Boomershine  v.  Uline,  159  Ind.   500  261,  264 

Boone  v.  State,  10  Tex.  App.  418   105 

Boos  v.  State.  1 1  End.  App.  257 465 

Borchman  v.  Phillipsburg,  68  X.  J.  L.  552 

Bordwell  v.  Dills,  7<>  Ark.  175 ;;s:i 

Bordwell  v.  State,  7  7  Ark.  161 100,  307,  397,  403 

Borgasou  v.  Eklund,  96  111.  App.  443 458 


xxxiv  TABLE    OF    CASES. 


Botto  v.  State,  26  Miss.  108  676 

Bound  v.  South  Carolina  Ry.  Co.,  57  Fed.  485 504,  514,  531 

Bowden  v.  Voorheis,  135  Mich.  648 439,  467 

Bowling  Green  v.  McMullen  (Ky.  1910),  122,  S.  W.  823 376 

Bowman  v.  Chicago  &  N.  W.  R.  Co.,  125  U.  S.  465 48,  53 

Bowman  v.  State,  38  Tex.  Cr.  14 368,  393 

Bouvier  Specialty  Co.  v.  James  (Ky.  C.  C.  1909),  118  S.  W.  381 177 

Bowyer  v.  Percy  Supper  Club,  Limited,  69  Law  P.  R.  K  S.  447 606 

Boyd  v.  Bryant,  35  Ark.  69 , 104 

Boyd  v.  Watt,  27  Ohio  St.  259 439 

Boydan  v.  Hoberstumpf,  129  Mich.  137 467,  480 

Boyles'  License,  190  Pa.  St.  577  190 

Braconier  v.  Packard,  136  Mass.  50 253,  277,  282 

Bradford  v.  Boley,  167  Pa.  St.  506 429,  431 

Bradley  v.  State,  121  Ga.  201 26,  34,  39,  41 

Bradley,  Matter  of,  22  Misc.  R.  (N.  Y.)  301   336 

Bragg  v.  State,  126  Ga.  442 677 

Brandit  v.  McEntee,  53  111.  App.  467  436,  478 

Brandt  v.  State,  17  Ind.  App.  311 456,  457 

Brannan  v.  Adams,  76  111.  331 471 

Brannon  v.  Silvernail,  81  111.  434 465 

Brantigam  v.  White,  73  111.  561 437,  463,  465 

Brantley  v.  State,  91  Ala.  47  674 

Braswell  v.  Commonwealth,  5  Bush.  (Ky  )  554 234 

Braun  Ex  parte,  141  Cal.  204 204 

Brazil,  Town  of,  v.  Kiess,  55  Ind.  14 199 

Breen's  License,  2  Pa.  Dist.  R.  652 300 

Breese  v.  Winters  (N.  J.  L.  1909),  73  Atl.  41 278,  284 

Brennan  v.  Roberts.  125  Iowa  615 630,  633 

Breslin,  Matter  of ,  45  Hun  (N.  Y.)  219 119,  277 

Brewer  v.  Nutt,  118  Ga.  257 198 

Brewing  Co.  v.  Campbell,  66  Kan.  361 516 

Brewing  Co's  License,  14  Pa.  Super.  Ct.  188 235,  245 

Brewster,  Matter  of,  85  App.  Div.  (K  Y.)  235 257 

Brewster,  Matter  of,  39  Misc.  R.  (K  Y.)  689 311,  312,  316 

Bridewell  v.  Ward,  72  Ark.  1S7 368 

Bridges  v.  State,  37  Ark.  224 666 

Briffitt  v.  State,  58  Wis.  39 21 

Brigancev.  Halock,  44  Tex.  Cir.  App.  277 402 

Briggs  v.  McKinky,  131  Mich.  154 343 

Britton  v.  Commonwealth,  105  Pa.  St.  311 293 

Brock  v.  State,  65  Ga.  437 23° 

Brockway  v.  Patterson,  72  Mich.  122 429,  462,  487,  489 

Brockway  v.  Petted,  79  Mich.  620 840,  343 

Brooklyn  v.  Toynbee,  31  Barb.  (N.  Y.)  282 564 

Brooks  v.  Cook,  44  Mich.  617 496 

Bronson  v.  Dunn,  124  Ind.  252 241 

Bronson  v.  Oberlen,  41  Ohio  St.  476 134,  139 

Brophy  v.  City  of  Perth  Ambory,  44  N.  J.  L.  217 558 

Brow  v.  State,  103  Ind.  133 684 


TABLE    OF    CASES.  xxxv 

SECTIONS 

Brown  v.  Commonwealth,  98  Ky.  G52 83,  204,  378 

Brown  v.  Commonwealth,  114  Pa.  St.  335 ;;.V> 

Brown  v.  Dicus  (Ind.  1909),  87  N.  E.  716 275 

Brown  v.  Lutz,  36  Neb.  527 142,  249,  251,  297 

Brown  v.  Matthews,  51  N.  J.  L.  253 260 

Brown  v.  Moore  (Ind.  1909),  87  N.  E.  974 275 

Brown  v.  Murphy,  51  N.  J.  L.  250  251 

Brown  v.  Perkins,  12  Gray  (Mass.)  89 609 

Brown  v.  State,  73  Ga.  38 173 

Brown  v.  State,  9  Neb.  189 202 

Brown  v.  State,  27  Tex.  335 226,  289 

Brown  Ex  parte,  38  Tex.  Cr.  295 85 

Brown  Ex  parte,  35  Tex.  Cr.  443 396,  409 

Brown,  Matter  of,  38  Misc.  R.  (N.  Y.)  157 403 

Brown-Foreman  Co.  v.  Commonwealth,  30  Ky.  Law  Rep.  793 50,  177 

Brownrigg  v.  Town  Council  of  Livington,  126  Ala.  93 138 

Bruce  v.  State,  36  Tex.  Cr.  53 387,  388,  389,  404 

Brumley  v.  State,  11  Tex.  App.  114 639 

Bruner  v.  Clay  City,  100  Ky.  567 200 

Bruner  v.  Stanton,  19  Ky.  Law  Rep.  1514 200 

Bryant  v.  Dv.  Moss,  34  Ind.  App.  473 242,  261 

Bryant  v.  Tidgewell,  133  Mass.  86 435,  439,  483 

Buck  v.  Haddock,  167  111.  219 492,  493 

Buck  v.  Powers  (Iowa  1909),  121  N.  TV.  1042 634 

Buckham  v.  Grape,  65  Iowa  535 444,  456 

Buckmaster  v.  HcElroy,  20  Neb.  557 496 

Buckner  v.  State,  56  Ind.  207 677 

Buck's  Estate,  185  Pa.  St.  57 292 

Buckworth  v.  Crawford,  24  111.  App.  603 439 

Buhlman  v.  Humphrey,  86  Iowa  597 634 

Buffalo  v.  Smith,  8  Hisc.  R.  (N.  Y.)  348 570 

Bukman  v.  Fahrenthold  (Tex.  Civ.  App.  1908),  114  S.  W.  428 445 

Bunnells'  License,  11  Pa.  Co.  Ct.  R.  404 268 

Burch  v.  Mayor,  42  Ga.  596 233 

Burch  v.  Ocilla  City  of  (Ga.  App.  1908),  62  S.  E.  666 11 

Burch  v.  Republic,  1  Tex.  608 637,  655,  662 

Busch  v.  Webb,  122  Fed.  655 45,  77,  368 

Burchell  v.  State,  47  Tex.  Civ.  App.  393 610,  61 1 

Burfiend  v.  Hamilton,  20  Mont.  343 180 

Burke  v.  Collins,  18  S.  D.  190 271 

Burks  v.  State,  51  Tex.  Cr.  637 403 

Burlew  v.  Schiller.  41  Tex.  Civ.  App.  202 -174 

Burlington  v.  Burngardner,  42  Iowa  673 209 

Burlington,  City  of  v.  Kellar,  18  Iowa  59 135.  145,  212 

Burnett  v.  State,  72  Miss.  994 683 

Burnett  Ex  parte,  30  Ala.  461 136,  216 

Burns'  A.ppeal,  76  Conn.  395 246,  268,  276 

Burns  In  re  (Ind,  1909),  87  X.  E.  1028 201,  244 

Burnside  v.  Lincoln  County  Court.  86  Ky.  423 45,  75,  77,  80 

Burrage  Ex  parte,  26  Tex.  App.  35 406 


xxxvi  TABLE    OF    CASES. 

SECTIONS 

Bush  v.  District  of  Columbus,  1  App.  Cas.  (D.  C.)  1 , 193 

Bush  V.  .Murray,  66  Me.  472 456 

Butler  v.  Fiscal  Court,  31  Ky.  Law  Rep.  596 392 

Butler  v.  Merritt,  113  Ga.  238 91 

Butler  v.  Palmer,  1  Hill  324 426 

Butler  v.  State,  25  Fla.  347  41,  375,  418 

Butler  v.  State,  89  Ga.  821 104 

Byrain  v.  Polk  County,  7G  Iowa  75 519 

Byrd  v.  State,  51  Tex.  539 418 

c 

Cain  v.  Allen,  168  Ind.  8 263 

Cain  Ex  parte  (Okla.  1908),  93  Pac.  974 78,  79,  83 

Caines  v.  State,  23  Tex.  App.  449  381 

Calder  v.  Brill,  3  Dall.  386 46 

Calderwood  v.  Jos.  Schlutz  Brew.  Co.  (Minn.  1909),  121  K  W.  221,. 304 

Caldwell  v.  Barrett,  73  Ga.  604 386 

Caldwell  v.  State,  43  Fla.  545 36,  649 

California  Ex  parte  Campbell,  74  Cal.  20 134 

Calloway  v.  Laydon,  47  Iowa  456 463,  465 

Cambridge  Springs  Co.  License,  20  Pa.  Co.  Ct.  564 234 

Cameron  v.  Fellows,  109  Iowa  534  380 

Cameron  v.  Tucker,  104  Iowa  211 619 

Camp  v.  State,  27  Ala.  53 151 

Campbell  v.  Campbell,  City  of  (Ga.  1909),  64  S.  E.  815 

155,,  156,  159,  162, 164,  165,  166,  169,  170 

Campbell  v.  Harmon,  96  Me.  87 466,  467 

Campbell  v.  Jackman  Bros.,  140  Iowa  475 608,  615 

Campbell  v.  Jackman  Bros.,  (Iowa,  1909)  118  N.  W.  775 76,  80 

Campbell  v.  Moran,  71  Neb.  615 249 

Campbell  v.  State  (Ind.  S.  C,  1909),  87  N.  E.  212 500,  537,  545,  547 

Campbell  v.  Thomasville,  City  of  (Ga.  1909),  64  S.  E.  815..  .19,  138,  145,  212,  220 

Campbell  Ex  parte,  74  Cal.  20 45 

Caudill  v.  Commonwealth,  23  Ky.  Law  Rep.  2139 284 

Canfield  v.  Leadville,  7  Colo.  App.  453 124 

Cannelton  v.  Collins  (Ind.  S.  C.  1909),  88  N.  E.  66 558 

Conon  City  v.  Manning,  43  Colo.   144 576 

Canova  v.  Williams,  41  Fla.  509 155,  204,  206 

Cantwell  v.  State,  47  Tex.  Cr.  511 382,  418 

Capritz  v.  State,  1  Md.  569 643 

Carbondale  v.  Wade,  106  111!  App.  654 184,  186,  187,  223,  304,  321 

Carey  v.  State,  70  Ohio  St.  121 386 

Carl  v.  State,  89  Ala.  93 38,  40 

Carl  v.  State,  87  Ala.  17 674 

Carleton  v.  Rugg,  149  Mass.  550 610 

Carlson's  License,  127  Past  330 310 

Carlton  v.  Krueger  (Tex.  Civ.  App.  1909),  115  S.  W.  619 440,  447 

Carmon  v.  State,  18  Ind.  450 34 


TAULK    OF    CASES.  xxxvii 


Carpenter  v.  Pennsylvania,   17  How.  450 46 

Carr  v.  Town  of  Fowler,  71  [nd.  590 145 

Carroll  v.  "Wright.  131  Ga.  728 175.   190,  297 

Carter  v.  Bartel,   L10  Iowa  211 630 

Carter  v.  Bernstein  Bros.,  104  Iowa  572 434,  436,  457,  474 

Cuter  v.  Nicol,    116  Iowa  019   861 

Carter  v.  State,  68  Ga.  820 643 

Carter  v.  Steyer,  93  Iowa  588 619 

Carson  v.  State,  69  Alii.  235 ■   201 

Casey  v.  Painter,  50  Ohio  St.  527 445 

Cason  v.    State,  37  Fla.  31 375 

Cassidy  v.  Mayor  of  City  Macon  (Ga.  1909) ,  66  S.  E.  941 303 

Castellano  v.  Marks,  37  Tex.  Civ.  App.   273 247 

Castle  v.  Bell,  145  Ind.  8 240,  262,  263 

Caswell  v.  State,  2  Humph.  (Tenn.)  402 35 

Catherwood  v.  Collins,  48  Pa.  St.  480 130 

Catoir  v.  AVatterson,  38  Ohio  St.  319 200 

Cautiori  v.  Tillman,  54  Fed.  969 77 

Cercle  Francais  de  L'Harmoine  v.  French,  44   Hun  (N.  Y.)  123 595 

Chaddock  v.  State,  18  Tex.  App.  567 164 

Chalmers  v.  Funk,  76  Va.  717 372 

Chamberlain  v.  State,  50  Ark.  132 193 

Chamberlain  v.  Tecumseh  City  of,  43  Neb.  221 200 

Chamlee  v.  Davis,   115  Ga.  266 394 

Champer  v.  Greencastle,  City  of,  138  Ind.   339 135,  136,   142,  159 

Chandler  v.  Ruebelt,  83  Ind.  139 241,  286 

Chapman  v.  State,  37  Tex.  Cr.  167 387,  404,  405,  406 

Chase  v.  Kenniston,  76  Me.  209 435,  457,  459 

Cheadle  v.  State,  4  Ohio  St.  477 668 

Cheney  v.  Coughlin,  201  Mass.  204 244,   276,  277 

Cherry  v.  Commonwealth,  78  Va.  375 325,   327 

Chesapeake  Club  v.  State,  63  Md.   446 586 

Chicago,  City  of,  v.  Enright,  27  111.  App.  557 198 

Chicago,  City  of,  v.  Metcher,  183  111.  104 139 

Chicago  Co.  v.  Chicago,  88  111.  221 144 

Chicago  &,  Northern  P.  R.  Co.  v.  Chicago,  174  111.  439 213 

Childers  v.  Shepherd,  142  Ala.  385 90 

Chippewa  Lumber  Co.  v.  Tremper,  75  Mich.  36 623 

Chmelir  v.  Sawyer,    42  Neb.  362 435 

Christenson  Ex  parte,  85  Cal.  208 194 

Church  v.  Higham,  44  Iowa   482 559,  571 

Cincinnati  N.  O.  &T.  P.  R.  Co.  v.  Commonwealth,  31  Ky.  L.  R.  954 

City  Council  Ex  parte,  64  Ala.  463 204 

Clark  v.  Daniel,  77  Ark.  122 

Clark  v.  Riddle,  101  Iowa  270 015,  626,  628 

Clark  v.  State,  40  Tex.  Cr.    107 688,    688 

Clark  Ex  parte,  09  Ark.  435 268 

Claus  v.  Hardy,  31Neb.'85.. 227 

Claussen  v.  City  of  Luverne,  103  Minn.  491   185.  190.  303,  304 

Clement,  Matter  of,  129  App.  Div.  (N.  Y).  229 294 


xxxviii  TABLE    OF    CASES. 

SECTIONS 

Clement,  Matter  of,  62  Misc.  R.   (N.  Y).  512 338 

Clement,  Matter  of,  29  Misc  R.  (X.  Y.)  29 383 

Clement  v.  Smith,  128  App.  Div.  (X.  Y.)   859 361 

Clement  v.  Viscose,  118  X.  Y.  Supp.  613 319,  338 

Cleveland  R.  Co.  v.  Backus,  133  Ind.  513 500 

Clevinger  v.  Town  of  Rushville,  90  Ind.  258  207 

Clinton,  City  of,  v.  Grusendorf,  80  Iowa  117 166 

Clinton  v.  Laning,  73  Mich.  284 360,  367 

Clinton  v.  Laning,  61  Mich.  355 463,  472 

Clohessy  v.  Rordelheim,  99  Pa.  St.  56 131 

Cobleigh  v.  McBride,  45  Iowa  116 , '. .  569 

Cochran  v.  State,  26  Tex.  678 653 

Cockerell  v.  Commonwealth,  115  Ky.  296 674 

Coe  Ex  parte,  19  Ark.  688 248 

Cofer  v.  Commonwealth,  27  Ky.  Law  Rep.  934 214 

Cofer  v.  Elizabethtown,  City  of,  30  Ky.  Law  Rep.  706 195,  214 

Cofield  v.  Britton  (Tex.  Civ.  App.  1908),  109  S.  W.  493 386,  394,  412 

Coggeshall  v.  Pollitt,  15  R.  I.  168 350 

Cohen  v.  Jerrett,  42  Md.  571 248 

Cohen  v.  King  Knob  Club,  55  W.  Va.  108  616 

Cohen  v.  Rice  (Tex.  C.  A.),  101  S.  W.  1052 156 

Cohen  In  re.  (Xeb.  1909),  121  W.  W.  107 249,  250 

Colburn  v.  Spencer,  177  Mass.  473 460 

Colder  v.  Kurby,  5  Gray  597 186 

Colder  v.  Sheppard,  61  Ind.  219 241 

Cole  v.  Commonwealth,  30  Ky.  Law  Rep.  385 413 

Cole  v.  McClendon,  109  Ga.  183 394 

Cole  v.  State,  120  Ga.  485 672 

Coleman  v.  People,  78  111.  App.  210 456 

Coleman  v.  state,  53  Tex.  Cr.  578 683 

Colglazier  v.  McClary,  5  Xeb.  (Xuoff)  332 250 

Collier  v.  Early,  54  Ind.  559 402,  487 

Collins  v.  Barrier,  64  Miss.  21 248,  264,  275 

Collins  v.  Marvil,  145  Ind.  531  262 

Collins  v.  Xoyes,  66  X.  H.  619 516 

Collins  v.  State,  152  Ala.  90 210 

Collins  v.  State,  38  Ind.  App.  625 66 

Columbia  Club  v.  McMaster,  35  S.  C.  1 209,  599 

Columbus  City  v.  Cutcomb,  61  Iowa  672 186 

Colwell  v.  State,  112  Ga.  75 38 

Combs  v.  State,  81  Ga.  780 418 

Commissioners  v.  Kane,  47  X.  C.  288 274 

Commissioners  v.  Morris.  02  Ga.  538 199 

missioners  Court  v.  Beall,  98  Tex.  104  389 

Common  Council  v.  Fairchild,  1  Ind.  315 229 

mon  Council  of  Oshkosh  v.  State,  59  Wis.  425 267,  322,  328 

Commonwealth  v.  Adams,  1  Gray  481 656 

Commonwealth  v.  Anberton,  133  Mass.  404 110 

Commonwealth  v.  Anthes,  12  Gray  (Mass.)  29 25 

Commonwealth  v.  Asbury,  104  Ky.  320 194 


TAULL    OF    CASES. 


xxx  IX 


Commonwealth  v.  Austin,  97  Mass.  595 

Commonwealth  v.  Baker,  152  Mass.  337 ;,- ; 

( N  >niiiii  hi  wealth  v.  Benge,  13  K\ .  I..  Rep.  591 643 

Commonwealth  v.  Bennett,  108  Mass.  27 c,:,;; 

Commonwealth  v.  Bottoms,  22  Ky.  Law  Rep.  410 378 

Commonwealth  v.  Branamon,  8  B.  Mon.  (Ky.)  874 291  298 

Commonwealth  V.  Barnes,  140  .Mass.  -117 Ill 

Commonwealth  v.  Bearce,  150  Mass.  389 253' 322 

Commonwealth  v.  Brelsford,  161  Mass.  01 <;74 

Commonwealth  v.  Brem,  5  Pa.  Dist.  lief.  104 598 

Commonwealth  v.  Brennan,  103  Mass.  70 192 

Commonwealth  v.  Brewing  Co.  140  Pa.  St.  642 193 

Commonwealth  v.  Briant,  142  Mass.  463 688 

Commonwealth  v.  Brothers,  158  Mass.  200,  206 30,  110,  111,  628 

Commonwealth  v.  Brown,  124  Mass.  318 683 

Commonwealth  v.  Bryan,  9  Dana.  310 298 

Commonwealth  v.  Bryne,  20  Gratt.  (Va.)  165  198 

Commonwealth  v.  Campbell  (Ky.  1909),  117  S.  W.  383 81,  85 

Commonwealth  v.  Campbell,  128  Ky.  252 309 

Commonwealth  v.  Canny,  158  Mass.  210 682 

Commonwealth  v.  Carpenter,  100  Mass.  204 5 

Commonwealth  v.  Casey,  134  Mass.  194 HO 

Commonwealth  v.  Certain  Intoxicating  Liquors,  4  Allen  (Mass.)  593 525 

Commonwealth  v.  Certain  Intoxicating  Liquors,  4  Allen  (Mass.)  601 .  .     517 

Commonwealth  v.  Certain  Intoxicating  Liquors,  6  Allen  (Mass.)  596. . .   527,  536 

Commonwealth  v.  Certain  Intoxicating  Liquors,  6  Allen  (Mass.)  599  527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  13  Allen  (Mass.)  561. . .   524,  536 

Commonwealth  v.  Certain  Intoxicating  Liquors,  97  Mass.  63 524 

Commonwealth  v.  Certain  Intoxicating  Liquors,  97  Mass.  332 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  97  Mass.  601 536 

Commonwealth  v.  Certain  Intoxicating  Liquors,  103  Mass.  454 552 

Commonwealth  v.  Certain  Intoxicating  Liquors,  105  Mass.  178 523 

Commonwealth  v.  Certain  Intoxicating  Liquors,  107  Mass.  216 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  107  Mass.  396 506 

Commonwealth  v.  Certain  Intoxicating  Liquors,  109  Mass.  371 521 

Commonwealth  v.  Certain  Intoxicating  Liquors,  1 1 ' >  Mass.  182 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  110  Mass.  416 504,  525 

Commonwealth  v.  Certain  Intoxicating  Liquors,  1 13  Mass.  208 527,  529 

Commonwealth  v.  Certain  Intoxicating  Liquors,  113  Mass.  455 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  115  Mass.  142 546 

Commonwealth  v.  Certain  Intoxicating  Liquors,  115  Mass.  153 77 

( 'ommonwealth  v.  Certain  Intoxicating  Liquors,  1 16  Mass.  21 526 

Commonwealth  v.  Certain  Intoxicating  Liquors,  116  Mass.  27 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  117  Mass.  427 527,  528 

Commonwealth  v.  Certain  Intoxicating  Liquors,  122  Mass.  8 527 

Commonwealth  v.  Certain  Intoxicating  Liquors,  122  Mass.  30 527,  529 

Commonwealth  v.  Certain  Intoxicating  Liquors,  128  Mass.  7-2 519 

Commonwealth  v.  Certain  Intoxicating  Liquors,  135   Mass.  519 519 

<  Jommonwealth  v.  Certain  Intoxicating  Liquors.  140  Mass.  287 539 

Commonwealth  v.  Certain  Intoxicating  Liquors,  146  Mass.  509 509 


sl  TABLE    OF    CASES. 

SECTIONS 

Commonwealth  v.  Cbappel,  116  Mass.  7 28 

Commonwealth  v.  Churchill,  136  Mass.  148 681 

Commonwealth  v.  Collier,  134  Mass.  203 671 

Commonwealth  v.  Costello,  133  Mass.  192 110 

Commonwealth  v.  Coughlin,  182  Mass.  358 687 

Commonwealth  v.  Crossley,  hJ2  Mass.  515 651 

Commonwealth  v.  Curran,  119  Mass.  206 665,  686 

Commonwealth  v.  Dean,  110  Mass.  357 368 

Commonwealth  v.  Dean,  14  Gray  (Mass.)  99 30 

Commonwealth  v.  Dolan,  121  Mass.  374 665,  686 

Commonwealth  v.  Donahue,  149  Pa.  St.  104 192 

Commonwealth  v.  Ducey,  126  Mass.  269 171 

Commonwealth  v.  Dunbar,  9  Gray  (Mass.)  298 861 

Commonwealth  v.  Dunn,  111  Mass.  426 666 

Commonwealth  v.  Duprey,  180  Mass.  685 523 

Commonwealth  v.  Elmore,  22  Ky.  Law  Rep.  510 248 

Commonwealth  v.  Elliott,  4  Pa.  Dist.  R.  89 309 

Commonwealth  v.  Elwell,  1  Gray  (Mass.)  463  658 

Commonwealth  v.  Estabrook,  10  Pick  (Mass.)  293 293 

Commonwealth  v.  Ewig,  145  Mass.  119  •  587 

Commonwealth  v.  Ferden,  141  Mass.  28 662 

Commonwealth  v.  Foster,  182  Mass.  27  , 672 

Commonwealth  v.  Fowler,  98  Ky.  648 228 

Commonwealth  v.  Fowler,  96  Ky.  166  125,  190 

Commonwealth  v.  Fowler,  17  Ky.  Law  Rep.  1209 125 

Commonwealth  v.  Frances,  152  Mass,  508 117 

Commonwealth  v.  Fredericks,  119  Mass.  199 134 

Commonwealth  v.  Frost,  155  Mass.  273  288 

Commonwealth  v.  Finnegan,  124  Mass.  324 451 

Commonwealth  v.  Gardner,  7  Gray  (Mass.)  494 658 

Commonwealth  v.  Giltinan,  64  Pa.  St.  100 7 

Commonwealth  v.  Gould,  158  Mass.  499 113,  124,  680 

Commonwealth  v.  Graves,  18  B.  Mon.  (Ky.)  33 267 

Commonwealth  v.  Grey,  2  Gray  501 646 

Commonwealth  v.  Haderaft,  6  Bush.  (Ky.)  91 652 

Commonwealth  v.  Hall,  8  Gratt.  588 295 

monwealth  v.  Hampton,  3  Gratt.  590 651 

( lommonwealth  v.  Harris,  7  Gratt.  (Va.)  600 640 

Commonwealth  v.  Hawkins,  98  Ky .  176 251 

Commonwealth  v.  Hayes,  149  Mass.  32  210 

monwealth  v.  Hayes,  145  Mass.  289 688 

Commonwealth  v.  Head.  11  Gratt.  819 653 

Commonwealth  v.  1  [elback,  101  Ky.  166,  167 232,  648 

Commonwealth  v.  Henry,  109  Mass.  366  682 

Commonwealth  v.  Herrick,  6  Cush.  (Mass.)  465,  408  3 

Coi  i     ealth  v.  Hinds,  145  Mass.  182 530 

I       imonwealth  v.  Hok,  14  Bush.  668 375 

I        monwealth  v.  Holbrook,  10  Allen  200 84 

(  i  I  Ky.  323 277,  293 

Commonwealth  v.  Holstine,  132  Pa.  St.  357 680 


TABLE    OF    CASKS.  X1J 

SE4  ■  ■ 

Commonwealth  v.  Igo,  158  Mass.  199 665 

Commonwealth  v.  Intoxicating  Liquors,  105  .Mass.  595 550 

Commonwealth  v.  Intoxicating  Liquors,  113  Mass.  28 551 

Commonwealth  v.  Intoxicating  Liquors,  168  Mass.  43 :'i- 

Commonwealth  v.  Intoxicating  Liquors,  1 18  Mass.  18  541 

Commonwealth  v.  Intoxicating  Liquors,  150  .Mass.  i<;4  

Commouwealth  v.  Intoxicating  Liquors,  128  Mass.  72 536 

Commonwealth  v.  Intoxicating  Liquors.   1 10  .Mass.  182 535,  537 

Commonwealth  v.  Intoxicating  Liquors,  172  Mass.  311 498,  508 

Commonwealth  v.  Intoxicating  Liquors,  113  Mass.  13   505,  521 

Commonwealth  v.  Intoxicating  Liquors,  113  Mass.  13 522,  52  I 

Commonwealth  v.  Intoxicating  Liquors,  142  Mass.  470 51 s 

Commonwealth  v.  Intoxicating  Liquors  (Mass.  S.  C.  1909),  89 N.  E.  918 535 

Commonwealth  v.  James,  98  Ky.'30 295 

Commonwealth  v.  Jarrell,  9  Ky.  Law  Rep.  572 874 

Commonwealth  v.  Jones,  27  Ky.  Law  Rep.  16 388 

Commonwealth  v.  Jones,  142  Mass.  573 258 

Commonwealth  v.  Jordan,  18  Pick.  (Mass.)  228 ~ 

Commonwealth  v.  Joslin,  158  Mass.  482 113.  134 

Commonwealth  v.  Kane,  143  Mass.  92 Ill 

Commissioners  v.  Kane,  47  N.  C.  293 377 

Commonwealth  v.  Kiley,  150  Mass.  325 313 

Commonwealth  v.  Keenan,  11  Allen  (Mass.)  262 683 

Commonwealth  v.  Keenan,  152  Mass.  9 688 

Commonwealth  v.  Kelley,  177  Mass.  221 120 

Commouwealth  v.  Kerrick,  6  Cush.  (Mass.)  465 70 

Commonwealth  v.  King,  86  Ky.  436 378,  386 

Commonwealth  v.  Kohnle  Brew.  Co.,  1  Pa.  Super.  Ct.  627 309 

Commonwealth  v.  Leddy,  148  Mass.  130 688 

Commonwealth  v.  Leddy,  105  Mass.  381 517,  537, 

Commonwealth  v.  Lemon,  25  Ky.  Law  Rep.  522 379 

Commonwealth  v.  Livermore,  4  Gray  <  Mass.)  18 8 

Commonwealth  v.  Locke,  114  Mass.  288  212 

Commonwealth  v.  Luck,  2  B.  Mon.  ( Ky.)  296 218 

Commonwealth  v.  Luddy,  148  Mass.  563  642 

Commonwealth  v.  Lynch.  164  Mass.  541 682 

Commonwealth  v.  Manning,  164  Mass.  547 658 

Commonwealth  v.  McCann,  123  Ky.  247 7:!.  81,  118 

Commonwealth  v.  McCormick,  150  Mass.  270 

Commonwealth  v.  McDonald,  160  Mass.  528 194 

Commonwealth  v.  McDonough,  150  Mass.  504 ill 

Commonwealth  v.  McGrath,  185  Mass.  1 :;" 

Commonwealth  v.  McGroarty,  1 18  Pa.  St.  606 175 

Commonwealth  v.  McGuirk,  78  Pa.  St.  298 

Commonwealth  v.  McKenna,  158  Mass.  007 682 

Commonwealth  v.  McKiernan,  138  Mass.  114 659 

Commonwealth  v.  McNeese,  156  Mass.  381 

Commonwealth  v.  Mandeviller,  142  Mass.  469 288 

Commonwealth  v.  Martin,  162  -' 683 

Commouwealth  v.  Mania.  170  Pa.  St.  lis 181,  182 


xjij  TABLE    OF    CASES. 

SECTIONS 

Commonwealth  v.  Matthews,  129  Mass.  485 206 

Commonwealth  v.  Moran,  148  Mass.  453  219 

Commonwealth  v.  Moore,  145  Mass.  244 Ill 

Commonwealth  v.  Morgan,  149  Mass.  314,  316 17,  33 

Commonwealth  v.  Murium,  136  Mass.  433 231 

Commonwealth  v.  Murphy,  95  Ky.  38 117 

C<  anmonwealth  v.  Murphy,  155  Mass.  284 644 

Commonwealth  v.  Xaylor,  34  Pa.  St.  86,  88 119 

Commonwealth  v.  Nelson,  22  Ky.  Law  Rep.  410 378 

Commonwealth  v.  Newton,  123  Mass.  420  539 

(    mmonwealtn  v.  Neylon,  159  Mass.  541 671 

Commonwealth  v.  Overly,  107  Ky.  169 376 

Commonwealth  v.  Patch,  97  Mass.  221 142 

Commonwealth  v.  Pease,  110  Mass.  412 38 

Commonwealth  v.  Peckham,  2  Gray  (Mass.)  514 31 

Commonwealth  v.  Peoples  Express  Co.  (Mass.),  88  N.  E.  420 211 

Commonwealth  v.  Pillsbury,  12  Gray  (Mass.)  127 96 

Commonwealth  v.  Pomphret,  137  Mass.  564 587 

Commonwealth  v.  Powell,  22  Ky.  Law  Rep.  1932 202 

Commonwealth  v.  Ramsdell,  130  Mass.  68 38,  40 

Commonwealth  v.  Regan,  182  Mass.  22,  685 686 

Commonwealth  v.  Regan,  9  Gray  (Mass.)  137 686 

Commonwealth  v.  Reed,  162  Mass.  215 551 

Commonwealth  v.  Reyburg,  122  Pa.  St.  299 28,  674 

Commonwealth  v.  Riley,  14  Bush.  44 637 

Commonwealth  v.  Rourke,  141  Mass.  321 110,  670 

Commonwealth  v.  Ryan,  136  Mass.  436 662 

Commonwealth  v.  Sawtelle,  150  Mass.  320  Ill 

Commonwealth  v.  Sbeckls,  78  Va.  36  84 

monwealth  v.  Sellers,  130  Pa.  St.  32 192,  661 

Commonwealth  v.  Shaw,  116  Mass.  8 682 

:  monwealth  v.  Shea,  160  Mass.  6 682 

Commonwealth  v.  Shea,  14  Gray  (Mass.)  86 5 

Commonwealth  v.  Simmons,  4  Pa.  Dist.  R.  35 309 

Commonwealth  v.  Slaughter,  12  Ky.  Law  Rep.  893 654 

Commonwealth  v.  Sloan,  4  Cush.  (Mass.) 640 

Commonwealth  v.  Smith,  2  Pa.  Dist.  Rep.  474 598 

Commonwealth  v.  Smith,  102  Mass.  144 587 

Commonwealth  v.  Smith,  1  Gratt.  533 643 

Commonwealth  v.  Smoulter,  126  Pa.  St.  137 , 175 

Commonwealth  v.  Snow,  133  Mass.  575 25 

Commonwealth  v.  Stevens,  155  Mass.  291 687 

Commonwealth  v.  Stringer,  78  Ky.  56 363 

ealth  v.  Sullivan,  156  Mass.  487 672 

Commonwealth  v.  Swertzer,  129  Pa.  St.  644 280 

Commonwealth  v.  Tabor,  138  Mass.  496 112,  113 

Commonweall h  v.  Thompson,  2  Gray  (Mass.)  83 363 

Commonwealth  v.  Thorneley,  2  Allen  445 84 

Commonwealth  v.  Tierney,  148  Pa.  St.  552  ~ 598 

Commonwealth  v.  Timothy,  8  Gray  (Mass.)  480 9,  31 


TABLE    OF    I  ASES.  xliii 

Commonwealth  v.  Traylor,  22  Ky.  Law  Rep.  97 656 

( lommonwealth  v.  Tufkin,  KIT  Mass.  553 07 ; 

Commonwealth  v.  Turner,   1  Cush.  498 145 

( lommonwealth  v.  Unrig,  146  Mass.  132 0*3 

Commonwealth  v.  Voorhies,  12  B.  Mon.  (Ky.)  3G1 136,  212 

Commonwealth  v.  Watson,  2  Pa.  Die.  R.  526 121 

Commonwealth  v.  Welch,  111  .Mass.  856 ^S<J 

Commonwealth  v.  "Weller,  14  Bush.  (Ky.)  218 886,  871 

Commonwealth  v.  Weller,  81£  Pa.  St.  127 376 

Commonwealth  v.  Weisenburg,  126  Ky.  8 413 

Commonwealth  v.  Weizel,  24  Pa.  Super.  Ct.  407 686 

Commonwealth  v.  Wheeler,  79  Ky.  284 233 

Commonwealth  v.  White  18  B.  Thou.  492 637 

Commonwealth  v.  Wood,  116  Ky.  748 638 

Commonwealth  v.  Wood,  4  Gray  (Mass) 658 

Commonwealth  v.  Worcester,  141  Mass.  58 Ill 

Commonwealth  Court  v.  Beall,  98  Tex.  104 372 

Comstock  v.  Hopkins,  61  Hun  (N.  Y.)  189 440 

Cornelius  v.  Hultman,  44  Neb.  441 455 

Conley  v.  Zerber,  74  Iowa  699 624 

Connecticut  Breweries  Co.  v.  Murphy,  81  Conn.  145 231,  235,  296 

Confrey  v.  Stark,  73  111.  187 473 

Conrad  v.  State,  70  Miss.  733 469 

Conservative  Realty  Co.  v.  St.  Louis  Brew.  Assn.,  133  Mo.  App.  261 235 

Conwell  v.  Overmeya,  145  Iud.  698 263 

Couwell  v.  Sears,  65  Ohio  St.  49 174 

Cook  Brewing  Co.  v.  Gailer,  168  Fed.  942,  948 187,  303 

Cooke  v.  Loper,  151  Ala.  546  223 

Cooke  v.  Mercer  Pleas,  51  N.  J.  L.  85 204 

Cooper  v.  City  of  Hot  Springs  (Ark.  1908)  111  S.  W.  997 178 

Cooper  v.  Hunt,  103  Mo.  App.  9 243,  267,  2G8 

Copeland  v.  Town  of  Sheridan,  152  Iud.  107 204,  317 

Corbett  v.  "Washington  Territory,  l  Wash.  Ter.  431 151 

Corbett  v.  Duncan,  63  Miss.  85 242 

Corporation  of  Aberdeen  v.  Sauuderson,  8  Sm.  &  M.  (Miss.)  663 225 

Corporation  of  Minden,  36  LaAnn.  912 164 

Cowert  Ex.  parte,  92  Ala.  94 138 

Cost  v.  State,  96  Ala.  60 646,  662 

Costello  v.  State,  130  Ala.  143 674 

Cotton  v.  State,  62  Ark.  583 104 

Couchman  v.  Prather,  162  [nd.  250 495 

Coughtry  v.  Hampt,  47  Tex.  Civ.  App.  452 491 

Coulson  v.  Harris,  43  Miss.  728 186 

Coulterville  v.  Gillen,  72  111.  599 204 

Councel  v.  Van.  Roven,  2  Mc.  C.  L.  (S.  C.)  465 112 

County  of  Allegany  v.  Town  of  Wellsvffle,  90  Hun  (N.  Y.)  23 182 

County  of  Amador  v.  Kennedy,  70  Cal.  458 215 

County  of  Appling  v.  Mc  Williams,  69  Ga.  840 197 

County  Commissioners  v.  Robinson.  16  Minn.  381 268,  280 

County  Commissoners  v.  State,  24  Fla.  55 403 


xliv  TABLE    OF    CASES. 

SECTIONS 

( lowles  -Matter  of,  34  Misc.  R.  (K  Y.)  447 255 

Cox  v.  Common  Council  of  Jackson,  152  Mich.  630 273,  313 

Burnhan,  100  Iowa.  43  64,  278 

Cox  v.  Xewkirk.  73  Iowa.  42 435,  456 

Cox  v.  Thompson,  96  Tex.  468 352 

Cox  Ex  parte,  28  Tex.  App.  537 375 

Crabb  v.  State.  88  Ga.  584 61,  100,  118,  510 

Crabtree  v.  Reed,  50  Rl.  206 459 

Craddock  v.  State,  18  Tex.  App.  367 135 

Craig  v.  Burnett,  32  Ala.  728 216 

Craig  v.  Werthmueller,  78  Iowa  598  613,  616 

Craig,  City  of  v.  Smith,  31  Mo.  App.  286 197 

Cramer  v.  Danielson,  99  Mich.  531 420,  451 

Cranor  v.  Albany,  43  Oreg.   144  164,  647 

Cravens  v.  Adair  Counry  Court,  17  Ky.  Law.  Rep.  71 244 

Crawford  County  v.  Laub.  110  Iowa  355 180 

Crawley  v.  Commonwealth,  123  Pa.  St.  275 344 

Creel  v.  Cordon,  44  Tex.  Civ.  App.  367 447 

Crigler  v.  Shepler  (Kan.  1909),  101  Pac.  619 59 

Croker  v.  Camden  Board  of  Excise,  73  N.  J.  L.  460 159,  164,  167,  171 

Cronin  v.  Adams,  192  U.  S.  108 114,  115 

Crosby  v.  Snow,  16  Me.  121 359 

Crow  Dog  Ex  parte,  109  U.  S.  556 43 

Crowin  v.  Stoddard,  97  N.  Y.  271 281 

Crowley  v.  Christensen,  137  U.  S.  86,  91 77,  80,  190 

Croxton  v.  Truesdel,  75  S.  C.  418 61,  91,  379 

Cruse  v.  Aden,  127  111.  231 421,  422 

Cunningham  v.  Berry,  17  Oreg.  622 637 

Cunninghan  v.  State,  5  W.  Va.  508 646 

Crutz  v.  State,  4  Ind.  385 « 339 

Cuirczak  v.  Keron  (N.  J.  L.  1908),  70  Atl.  366 316 

Cullen  v.  State,  42  Conn.  55 193 

Cullinan,  Matter  of,  68  App.  Div.  (N.  Y.)  119 314 

Cullman  v.  Buskard,  93  App.  Div.  (K  Y.)  31 356,  363 

Cullinan  v.  Criterion  Club,  39  Misc.  R.  (N.  Y.)  270 507 

Cullinan  v.  Pidelty  &  Casualty  Co.,  84  App.  Div.  (N.  Y.)  292 354 

Cullinan  v.  Fidelity  &  Casualty  Co.,  41  Misc.  R.  (N.  Y.)  119 345 

Cullinan  v.  O'Connor,  100  App.  Div.  (N.  Y.)  142 354 

Cullinan  v.  Trolley  Club,  65  A  pp.  Div.  (K  Y.)  202 595 

Cullinan,  Matter  76  App.  Div.  (N.  T.)  362 317,  318 

Cullinan,  Matter  of,  82  App.  Div.  (N.  Y.)445 188 

Cullinan,  Matter  of ,  87  App.  Div.  (K  Y.)  47 336 

Cullinan,  Matter  of,  88  App.  Div.  (N.  Y.)  6 309 

Cullinan,  Matter  of,  93  App.  Div.  (N.  Y.)  540. . .    323 

Cullinan,  Matter  of ,  94  App.  Div.  (N.  Y.)  445 188,  320 

Cullinan,  Matter  of ,  97  App.  Div.  (N.  Y.)  122 323 

Cullinan,  Matter  of,  39  Misc.  R.  (X.  Y.)  354 321 

( iullinan,  Matter  of,  39  Misc  R.  (N.  Y.)  355 325 

Cullinan.  Matter  of,  39  Misc.  R.  (N.  Y.)  558 321 

Cullinan,  Matter  of,  39  Misc.  R.  (N.  Y.)  641 337 


•      TABLE    OF    CASE    .  xlv 

Ml     ! 

Cullinan,  Matter  of.  39  Misc.  R.  (X.  Y. )  846 246,  318 

Cullinan,  Matter  of,  40  Misc.  R.  (N.  Y.)428 317,  333 

Cullinan,  Matterof,41  -Misc.   II.  (N.  Y.)  3 119 

Cunningham  v.  Porchet,  2:}  Tex.  Civ.  App.  80 107 

Oman  v.  Owens,  15  VV.  Ya.  208 426 

Curran  v.  Percival,  21  Neb.  4:54     460 

Currier  v.  McKee,  99  Me.  364 432,433 

Curry  v.  State,  28  Tex.  App.  475 , 395 

Curry  v.  State,  28  Tex.  App.  447 230 

Curry  v.  Township  of  Tawas,  81  Mich.  355 199 

Curtis  v.  Leavitt,  15  N.  Y.  229 426 

Custin  v.  City  of  Viroqua,  67  Wis.  314 199 

Cuzner  v.  California  Club  (Cal.  S.  C.  1909),  100  Pac.  868 575 

D 

Dakota  Burke  v.  Collins,  18  S.  D.  190 190 

Dallas  Brewery  v.  Holmes  Bros.  (Tex.  Civ.  1908),  112  S.  W.  122.21,  34,  26,  31,  376 

D'Amato's  Appeal,  80  Conn.  357  342,  293 

Daniel  v.  State,  149  Ala.  44 688 

Danley  v.  Hibbard,  222  111.  88 448,  452,  472 

Darling  v.  Boeseh,  67  Iowa  702 265 

Darling  v.  City  of  St.  Paul,  19  Minn.  387 149 

I  >arst  v.  People,  51  111.  286 547 

Dasli  v.  Van  Kluck,  7  Johns  (N.  Y.)  47 426 

Davenport  v.  Ryan,  81  111.  218 481 

Davis  v.  Auld,  96  Me.  559 610,  612,  614 

Davis  v.  Hoard  of  Supervisors,  7  Cal.  App.  571 260 

Davis  v.  Borland,  (Neb.  1909),  119  N.  AY.  454 462 

Davis  v.  Commonwealth,  75  Ya.  U44 303 

Davis  v.  Dashiel,  61  N.  C.  114 179 

Davis  v.  Pasig,  128  Intl.  271 166 

1  >a vis  v.  Henderson,  31  Ky.  Law.  Rep.  1252 

Davi;  v.  Justice,  31  Ohio  St.  359  187 

Davis  v.  McKnight,  146  Pa.  St.  610 433,  474 

Davis  v.  Standish,  26  Hun  (X.  Y.)  608,  615 435,  4  43,  462 

Davis  v.  s:atr,  4  Stew  &  P.  (Ala.)  83 232 

Davis  v.  State,  50  Ark.  17 38 

Davis  v.  Stat-.  2  Tex.  App.  425 193 

Dawson  v.  State,  25  Tex.  App.  670 396 

Day  v.  Frank,  127  Mass.  497 556 

Dearen  v.  Taylor  County  Court,  98  Ky.  135 

De  Blancv.  Mayor,  &  Board  of  Trustee,  106  La.  680 608,  613 

Decberd  v.  Drewry,64  Ark.  599 

Decie  v.  Brown,  167  Mass.  290 319 

Decker  v.  Board  of  Excise,  57  X.  J.  L.  603 305 

Decker  v.  McGowan.  59  Ga.  805  232 

Decker  v.  Sargeant,  125  End.  404 159,  164 

Decker  v.  State,  39  Tex.  Cr.  20 3 


x]vj  TABLE    OF    CASKS. 


SECTIONS 


De  Grazier  v.'  Stephens  (Tex.  S.  C.  1907),  105  S.  W.  992.  . . , 81,  201 

Deignan  v.  License  Commissioners,  16  R.  I.  727 322 

Deitz  v.  City  of  Cential,  1  Colo.  323 172 

Delaney  v.  State.  51  N.  .1.  L.  37 680 

Delamaster  v.  South  Dakota,  205  XT.  S.  93,  (J'J 54,  55,  59,  81 

Delfer  v.  Hanson,  2  Wash.  194 473,  492 

Delphi  v.  Hamling  (Ind.  S.  C.  1909),  89  N.  E.  308 568 

Denby  v.  Fie,  106  Iowa  229 631 

Deuckson  v.  Coules  (Ky.  1909),  117  S.  W.  955 413 

Denmead  v.  Parker  (Iowa  S.  C.  1910),  124  N.  W.  780 630,  631 

Dennely  v.  Chicago,  120  111.  627  138,  204,  215 

Dernsell  v.  State,  2  Ind.  658 68 

Dennison  v.  Van  Worrner,  107  Mich.  461 431 

Denton  v.  Vann,  8  Cal.  App.  677. .    139,  204 

Denvie  v.  State,  4  Iowa  443 649 

De  Puy  v.  Cook,  90  Hun  (N.  Y.)  43 469,  472 

Deutschman  v.  Town  of  Clarkstown,  40  Ind.  449 212 

Deveny  v.  State,  47  Ind.  208 673 

Devin  v.  Belt,  70  Md.  352 271 

Devine  v.  Com.,  180  Va.  860 685 

Dewar  v.  People,  40  Mich.  401 146 

Dexter  v.  Sprague,  22  R.  T.  324 261 

Dexter  v.  Town  Council,  17  R.  I.  222 253 

Deyo  v.  Rood,  3  Hill  (N.  Y.)  527 564 

Dickinson  v.  Eichorn,  78  Iowa  710 619 

Dillon  v.  Linder,  36  Wis.  344 426 

Disbrow  v.  Saunders,  1  Den.   (K  Y.)  149 297 

Dispensary  Commissioners  of  Lee  County  v.  Hooper,  128  Ga.  99 95,  608 

Dispensary  Commissioners  v.  Thornton,  106  Ga.  106 228 

District  of  Columbia  v.  Renter,  15  App.  D.  C.  237 118 

Divine  v.  Lakeview,  121  Mich.  433 343 

Dixon  v.  State,  67  Ark.  495 677 

Dixon  v.  State,  89  Ga.  785 685 

Dixon  v.  State,  21  Tex.  App.  517 643 

Dobbins  v.  Gaines,  52  S.  C.  176 507 

Dobbins  v.  United  States,  96  U.  S.  395 441 

Dolke  v.  State,  99  Ind.  229 684 

Donald  v.JScott,  67  Fed.  854,  857 92 

Donmoyer's  Licenses,  9  Pa.  Co.  Ct.  R.  303 247 

Donovan  v.  Fairfield  County  Commissioners,  60  Conn.  339 401 

Doran  v.  Phillips,  4?  Mich.  228 196,  197 

Dorman  v.  Mate,  34  Ala.  216 643 

Doty  v.  Postal,  87  Mich.  143 427 

Dougherty  v.  Commonwealth,  14  B.  Mon.  239 270 

Douglas  v.  State,  21  Ind.  App.  302 10,  22 

Douthit  v.  State,  98  Tex.  344 352,  361,  363 

Douthit  v.  State,  36  Tex.  Civ.  App.  396 178 

Dover  v.  Trombly,  42  N.  II.  59 96 

Dowdell  v.  State,  58  Ind.  333. 644 

Dowiat  v.  People,  92  111.  App.  433 340,  345 


TABLE    OF    CASES.  xlvii 


SECTIONS 


Downing  v.  Porter,  8  Gray  (Mass.)  539 519,  524,  529 

Doyles  License,  6  Kulp  356 300 

Drady  v.  District  Court,  126  Iowa  345 632 

Drake  v.  Drewry,  112  Ga.  308 400 

Drake  v.  Kiugsbaker,  72  Iowa  441 622 

Drechsel  v.  State,  35  Tex.  Cr.  577,  580 407,  408,  417,  648 

Drew  County  v.  Bennett,  43  Ark.  364,  365 83,  134,  193 

Driggs  v.  State,  52  Ohio  St.  37 103 

Druggist  Cases,  85  Teun.  449 173,  202,  562 

Drummond  v.  Richland  City  Drug  Co.,  133  Iowa  266 629 

Dry  sdale  v.  Pradat,  45  Miss.  445 218 

Dubois  v.  Miller,  5  Hun  (N.  Y.)  332 461 

Dubois  v.  Miller,  5  Hun  335 487 

Dudley  v.  Parker,  132  N.  Y.  386 343,  474 

Dudley  v.  Sailbbine,  49  Iowa  650 556 

Dudley  v.  State,  40  Ind.  A.  C.  74 . .  429 

Dufford  v.  Nolan,  46  N.  J.  L.  87 260 

Duluth  Brewing  &  M.  Co.  v.  City  of  Superior,  123  Fed.  353 211 

Dunlup  v.  Wagner,  85  Ind.  529 470 

Duulavey  v.  Watson,  38  Iowa  398 473 

Dunn  v.  State,  82  Ga.  27 510 

Dunn  v.  Stegeman  (Cal.  C.  A.  1909),  101  Pac.  25 134 

Dupree  v.  State  (Tex.  S.  C.  1909),  119  S.  W.  301 503,  519,  524.  544 

Durach's  Appeal,  62  Pa.  St.  491 173 

Durien  v.  Pontious,  34  Kan.  353 492 

Du  Vail  v.  City  Council  of  Augusta,  115  Ga.  813 22 

Dwinnels  v.  Parsons,  98  Mass.  470 98 

Dye  In  re,  79  Neb.  149 250 

E 

Eagan  v.  State,  37  Ark.  219 34,  685 

Eagan  v.  State,  53  Ind.  162 34 

Edgar  v.  State,  (Tex.  Civ.  App.  1907),  102  S.  W.  439 125 

Earp  v.  Lilly.  217  111.  582 439,  435 

East  Saginaw  v.  County  Treasurer,  44  Mich.  273 181 

East  St.  Louis,  City  of,  v.  Wehrung,  46  111.  392 215 

East  St.  Louis  v.  Wehrung,  50  111.  28,  31 149,  323 

Eastwood  v.  Klamm  (Neb.  1909),  120  N.  W.  149 481,  482 

Eaves  v.  State,  113  Ga.  749 5,  12,  20,  641,  640,  647 

Eddy  v.  Courtright,  91  Mich.  264 457.  472 

Edgar  v.  State.  46  Tex.  Civ.  App.  171    31; 

Edinburg  v.  Hackney,  54  Ind.  83 1" 

Edlernan  v.  United  States,  86  Fed.  450 43 

Edwards  v.  Brown,  77  Mo.  377 45 ' 

Edwards  v.  State,   22  Ark.  253 -89 

Egeleston,  Matter  of,  51  App.  Div.  (N.  Y.)  38 391 

Ehlertv.  State,  93  Ind.  70 ,;vl 

Ehrich  v.  White.  74  111.  481 684 


x]vjji  TABLE    OF    CASES. 


SECTIONS 


Eilenbecker  v.  District  Court  of  Plymouth  County,  134  U.  S.  31 612 

Eilke  v.  McGrath,  100  Ky.  537 445 

Elba  v.  Rhodes.  142  Ala.  689 90 

Elliott  v.  Barry,  34  Hun  (N.  Y.)  129 485 

Elliott  ex  parte,  49  Tex.  Cr.  R.  108 , 373 

Elliott  ex  parte.  44  Tex.  Cr.  575 378,  379 

Ellis  v.  People,  38  Colo.   516 114 

Elsline  v.  Schuyler,  15  Neb.  561 435,  482 

Eisner  v.  State,  30  Tex.  524 662 

Elwood  v.  Price,  75  Iowa  228 628 

Emerich  v.  Indianapolis,  118  Ind.  279 204 

Emery  v.  Lowell,  127  Mass.  138 199 

Emory  v.  Addis,  71  111.  273 435,  440 

Emporia  v.  Voluier,  12  Kan.   622 209 

Endleman  v.  United  States,  86  Fed.  456 84,  666 

Engelthaler  v.  Linn  County,  104  Iowa  293 297 

England  v.  Cox,  89  111.  App.  551 465 

England  v.  Johnson,  86  Iowa  751 034 

Engle  v.  State,  97  Ind.  122 445 

Engleken  v.  Hilger,  43  Iowa,  563 485 

Engleken  v.  Webber,  47  Iowa  558 439,  481 

English  v.  Beard,  51  Ind.  489 420,  456,  497 

Ennis  v.  Shirley,  47  Iowa  552 439 

Ensley  v.  State  (Ind.  S.  C.  1909),  88  N.  E.  62 65,  139,  142,  155,  211 

Enterprise  Brewing  Co.  v.  Grime,  173  Mass.  252 236 

Eslow  v.  City  of  Albion,  153  Mich.  720 199 

Eureka,  City  of  v.  Davis,  21  Kan.  578 145,  242 

Eureka  Vinegar  Co.  v.  Gazette  Printing  Co.,  35  Fed.  570,  571 17,  28,  29 

Evans  v.  Commonwealth,  95  Ky.  231 251,  284 

Evans  v.  Redwood  Falls,  103  Min,  314. 297 

Evans  v.  State  (Tex.  Cr.  1909),  117  S.  W.  167 412,  413 

Eve  v.  Simon,  79  Ga.  120 271 

Ezzell  v.  State,  29  Tex.  App.  521 411 

F 

Fagan  v.  State,  47  N.  J.  L.  175 121 

Fahey  v.  State,  27  Tex.  App.  146 173 

Faivre  v.  Manderscheid,;il7  Iowa  724 439,  481 

Farley  v.  Hollenfeltz,  79  Iowa  126 619 

Farmville  v.  Walker,   101  Va.  323 81,  91 

Farr  v.  Anderson,  135  Mich.  485 343 

Farrell  v.  Drees,  41  Wis.  186 426 

Fay  v.  Barber,  72  Yt.   55 538 

Fayette,  Matter  of,  45  Misc.  R.  (N.  Y.)  141 391 

Fears  v.  State,  102  Ga.  274 372 

Fears  v.  State,  125  Ga.  740 33,  34 

Featherstone  v.  Lambertville,  50  N.  J.  L.  507 145,  149 

Fecheimier  v.  Louisville,  84  Ky.  306 200 


TABLE    OF    CAS  x\[x 

Peek  v.  Township  Board,  82  Mich.  398  886,  871 

Pehn  v.  Stair.  8  [nd.  App.  568 

Feibelman  v.  State,  130  Ala.  122,  125 88 

Feigenspan  v.  Mulligan,  63  N.  J.  Eq.  170 : 298 

Feil.  v.  Kitchen  Bros.  Hotel  Co.  57  Neb.  22 252 

Felchlim  Ex  parte,  96  Cal.  360 314 

Feldman  v.  Morrison,  1  111.  App.  460. 5,  28 

Fell  v.  State,  42  Md.  71 83,  186,  303,  386 

Fenton  v.  State,  100  Ind.  598 20 

Fentz  v.  Meadows,  72  111.  540 421,  437,  465 

Fei  guson  v.  Brown,  75  Miss.  214 • 248,  276 

Ferguson  v.  Josey,  70  Ark.  94 498,  540 

Ferguson  v.  Monroe  County,  71  Miss.  524 383 

Fenner  v.  State,  3  R.  I.  107 522 

Fidelity  &  Deposit  Co.  v.  Jennes,  138  Iowa,  725 362 

Fielding  v.  La  Grange,  104  Iowa  530 556 

Fields  Ex.  parte,  39  Tex.  Cr.  50 378 

Fink  v.  Garman,  40  Pa.  St.  95 423 

Finn  v.  State,  38  Tex.  Cr.  75 601 

Finnegan  v,  Lucy,  157  Mass.  439 445 

Fischer  v.  Board  of  Suprs.  (Mich.  1909),  120  X.  W.  13 383 

Fisher  v.  Cass  County  District  Court,  75  Iowa  232 632 

Fisher  In  re  License,  11  Pa.  Dist.  Rep.  526 247 

Fisher  v.  McGirr,  1  Gray  (Mass.)  1 498,  502 

Fishery.  Met.  El.  R.  Co.,  34  Hun  (X.  Y.)  433 443 

Fitzgerald  v.  Donoher,  48  Neb.  852 ...  449 

Fitzgerald  v.  Hurley,  180  Mass.  151  225 

Fitzgerald  v.  Witchard,  130  Ga.  552 330 

Fitzpatrick  v.  State,  37  Ark.  373 677 

Flaherty  v.  Longley,  62  Me.  420 527 

Flanagan  v.  Plainsfield,  44  X.  J.  L.  118 205,  643 

Flancher  v.  Camden,   56  X.  J.  L.  244 281 

Fleming  v.  Xew  Brunswick,  47  X.  J.   L.  231 18,  651 

Fletcher  v.  Crist,  139  Ind.   121 286 

Fletcher  v.  Forler,  83  Mich.  52 454,  457 

Flint  v.  Gauer,  66  Iowa  696 439 

Flood  v.  State,  103  Md.  692 72 

Flora  v.  American  Express  Co.,  92  Miss.  66 504 

Florence  v.  Brown,  49  S.   C.  332 138 

Flournoy  v.  Grady,  25  La  Ann.  591 

Flower  v.  State,  39  Ark.  209 686 

Flow.r  v.  Witkovsky,  69  Mich.  371 423,  451,  457 

Flynn  v.  Fogarty,  106  111.  263 47:5,  479,  4^7 

Flynn  v.  Taylor."  145  Ind.  538 260,   264 

Foley  v.  Roth,  20  Ohio  S.  A;  ('.  P..  Dec  157 180 

Foltyn  In.  Re.  (Xeb.  1908),  118  X.  W.  119 275,  270 

Ford  v.  Cheever,  105  Mich.  679 5,  -UV.\,  465 

Ford  v.  Denver,  City  of,  10  Colo.  App.  500 572 

Forat's  Licenses,  208  Pa.  St.  578 248 

Fortier  v.  Moore,  67  X.  H.  460 494 


1  TABLE    OF    CASES. 

SECTIONS 

Fortner  v.  Duncan,  91  Ky.  171 136,  153 

Forty  three  gallons  of  Cognac  brandy,  11  Fed.  47 43 

Forwood  v.  State,  49  Md.  531 ..  • 302 

Foster  v.  Board  of  Police  Commissioners,  102  Cal.  483 77,  170,  200,  204,  219 

Foster  v.  Brown,  55  Iowa  686 153 

Foster  v.  Frost,  25  Neb.  731 286 

Foster  v.  Kansas,  112  U.  S.  201,  206 83 

Foster  v.  Speed,  120  Tenn.  470 174 

Foster  v.  State,  36  Ark.  258 38 

Fountain  v.  Draper,  49  Ind.  441 439,  456 

Fowler  v.  State,  85  Ind.  538  677 

Fox  v.  State  (Tex.  Cr.  1908),  109  S.  W.  370 378 

Fox  v.  Wunderlich,  64  Iowa  187 434,  465,  481 

Foxcroft  v.  Crooker,  40  Me.  308 98 

Fox  Lake,  Town  of,  v.  Village  of  Fox  Lake,  62  Wis.  486 181 

Frame  v.  State,  53  Ohio  St.  311 561 

France,  Matter  of,  36  Misc.  R.  (K  Y.)  693  391 

Frank  v.  Hoey,  128  Mass.  203 511 

Frankfort  City  of  v.  Aughe,  114  Ind.  77 218 

Franklin  v.  Schemerhorn  v.  Hun  (N.  Y.)  112 420,  443,  467 

Franklin  v.  State  (Ala.  1908),  48  So.  348 288 

Franklin  v.  Westfall,  27  Kan.  614 225 

Franklin  County  Liquor  Licenses,  26  Pa.  Co.  Ct.  R.  152 294 

Freeman  v.  Commonwealth,  8  Bush.  (Ky.)  139 232 

Freeman  v.  Lazarus,  61  Ark.  247 398,  412 

Freese  v.  Tripp,  70  111.  96 465 

Freiberg  v.  State,  94  Ala.  91 33,  652 

Fress  v.  State,  23  Fla.  267  33 

Fricker  v.  State,  39  Tex.  Cr.  254 387,  393 

Fries  &  Co.  v.  Porch,  49  Iowa  351 544 

Friesner  v.  Common  Council,  of  City  Charlotte,  91  Mich.  509 417,  419 

Fritz  v.  State,  1  Baxt.  (Tenn.)  15 7 

Fruide  v.  State,  66  Neb.  244 683 

Fry  v.  Kaessner,  48  Neb.  133 196 

Fuller  v.  McDonnell,  75  Iowa  220 624 

Fullwood  v.  State,  67  Misc.  554 394 

Funk  v.  Isreal,  5  Iowa  438 544 

Furman  v.  Knapp,  19  Johns  (N.  Y.)  248 232 

G 

Gabel  v.  Houston,  29  Tex.  335 164 

Gaertner  v.  Fond  du  Lac,  34  Wis.  497 322,  329 

Gage  v.  Harvey,  66  Ark.  68 423,  496 

Gage  v.  State  (Tex.  Cr.  App.  1903),  73  S.  W.  459 654 

Gaiocchpio  v.  State,  9 Tex.  App.  387 668 

Galindo  v.  Walter  (Cal.  C.  A.),  96  Pac.  505 209,  223 

Galloway  v.  State,  60  Ark.  302 ra 

Gambia  v.  Endrich  Bros.,  143  Ala.  506 206 

Gardner  v.  Day,  95  Me.  558 421,  487 


TABLE    OF    CASES.  li 

SECTIONS 

Gardner  v.  People,  20  111.  430 151,  208 

Garham  v.  State,  121  Ga.  590 685 

Garey's  License,  11  Pa.  Co.  Ct.  R.  468 310 

Gaillard  v.  Cantini,  76  Fed.  699 540 

Gansley  v.  Perkins,  30  Mich.  492 465,  48,  490 

Garner  v.  State,  8  Blackf.  568 375 

Garonzik  v.  State,  50  Tex.  Cr.  533 101,  156 

Garrett  v.  Bishop,  113  Iowa  23 106,  107 

Garrett  v.  Mayor,  47  La  Ann.  618 386 

Garrett  v.  Polk  County,  78  Iowa  108 519 

Garrigan  v.  Kennedy,  19  S.  D.  11 420,  480,  487 

Garrigan  v .  Thompson,  17  S.  D.  132 487,  490 

Garrison  v.  Steele,  46  Mich.  98 342,  346 

Garsed  v.  Greenslow,  126  N.  C.  159 91,  93 

Gaskins  v.  State,  127  Ga.  51 685 

Gaston  v.  O'Neal,  145  Ala.  484 226 

Gault  v.  State,  34  Ga.  533 40 

Gayle  v.  Owen  County  Court,  83  Ky.  61 385 

Gemas's  Appeal,  169  Pa.  St.  43 268 

Genge  v.  Goley,  128  Mass.  289 436 

Genovas  License  v.  Pa.  Dist.  Rep.  722  324 

George  v.  Winchester,  26  Ky.  Law  Rep.  170 271 

Germantown  Brewing  Co.  v.  Booth,  162  Pa.  St.  100 300 

Getchell  v.  Page,  103  Me.  387 516 

Getman,  Matter  of,  28  Misc.  R.  (N.  Y.)  451 416 

Gibboney's  Petition,  185  Pa.  St.  572 261 

Gibson  v.  State,  34  Tex.  Cr.  218 202,  375 

Giddings  v.  Wells,  99  Mich.  221 403 

Gieb  v.  State,  31  Tex.  Cr.  514 660 

Gilday  v.  Warren,  69  Conn.  237  301 

Gilham  v.  Wells,  64  Ga.  192 168 

Gill  v.  Parker,  31  Vt.  610 498 

Gilmore  v.  Matthews,  67  Me.  517 465 

Gilmore  v.  State,  125  Ala.  59 654 

Ging  v.  Sherry,  32  App.  Div.  (N.  Y.)  354 334 

Ginnochio  Ex  parte,  30  Tex.  App.  584 135 

Giozza  v.  Tiernan,  148  U.  S.  657 44,  45,  4? ,8 2 

Glass  v.  Commonwealth,  33  Gratt.  827 642 

Glenn  v.  Lynn,  89  Ala.  608 249.  272 

Glentz  v.  State.  38  Wis.  54!)  149 

Gloversdale  v.  Howell,  70  N.  Y.  287 386 

Godfreidson  v.  People,  8S  111.  284 3 

Goetz  v.  Stutsman,  73  Iowa  691  624 

Gofuth  v.  State,  60  Miss.  74 -231 

Goldsticker  v.  Ford,  62  Tex.  385 113 

Good  v.  Towns,  56  Vt.  410 474 

Goods  v.  State,  3  G.  Greene  566 689 

Goodenough  v.  McGrew,  44  Iowa  679 465,  468.  481 

Goodwin  v.  Smith,  72  Ind.  113 241 

Goodwin  v.  Young,  34  Hun  (N.  Y.)  253 424 


lH  TABLE    OF    CASES. 


Goodwine  v.  Flint,  28  Ind.  App.  36 252 

Gordon  v.  State,  46  Ohio  St.  607,  638 83,  368,  370 

Gorman  v.  State,  52  Tex.  Cr.  327 411 

Gorman  v.  Williams,  117  Iowa  560 362,  367 

Goulding  v.  Phillips,  124  Iowa  496 493 

Gorev  v.  Kelly,  64  Neb.  605 : 435,  478 

Graff  v.  Evans,  46  Law  T.  R.  N.  S.  347 606 

Graham  v.  Cooley,  73  Ohio  St.  127 445 

Gran  v.  Houston,  45  Neb.  813 435,  436,  478,  485,  492 

Granger  v.  Hayden,  17  R.  I.  179 350,  364 

Grantham  v.  State,  89  Ga.  121 646 

Grant's  License,  2  Pa.  Co.  Ct.  R.  87 248 

Gray  v.  Commonwealth,  9  Dana.  (Ky.)  300 293 

Gray  v.  Connecticut,  159  U.  S.  74 45 

Gray  v.  Davis,  27  Conn.  447 519,  527,  528 

Gray  v.  Eugene  (Oreg.  1909),  100  Pac.  306 418 

Gray  v.  Kimball,  42  Me.  299,  307 498,  503,  538 

Graziano  v.  City  New  Orleans,  121  La.  440 312 

Great  Fall  Bank  v.  Farmington,  41  N.  H.  32 97 

Green  v.  Smith,  111  Iowa  183 254,  380 

Green  v.  Southard,  94  Tex.  470  231 

Greencastle  v.  Thompson,  168  Ind.  493 77,  134,  156 

Greene  County  v   Wilhite,  29  Mo.  App.  459 346,  348,  356,  367 

Greener  v.  Williams  (Ind.  A.  C.  1909),  89  N.  E.  377 486 

Greenleaf  v.  Gallagher,  93  Me.  549 511 

Greenlee  v.  Schoenheit,  23  Neb.  669  484 

Greenough  v.  Board  of  Police  Commissioner  (R.  I.  1909),  71  Atl.  806 194 

Greentree  v.  Wallace,  77  Kan.  149 544,  545 

Greener  v.  Melhans  (Ind.  A.  C.  1909),  89 N.  E.  377 454 

Greener  v.  Melhans  (Ind.  A.  C.  1909),  89  N.  E.  377 454 

Griffin  v.  Commonwealth,  7  Ky.  Law  Rep.  300 100 

Griffin  v.  Tucker  (Tex.  S.  C.  1909),  118  S.  W.  635 378,  402 

Griffin  v.  Tucker  (Tex.  Civ.  App.  1909),  119  S.  W.  338 372,  402 

Grimm's  Estate,  181  Pa.  St.  233 292,  298 

Groescb.  v.  State,  42  Ind.  547 194,  248 

Groscop  v.  Rainier,  111  Ind.  361 261,  264 

Grosse  Point  v.  Treasurer,  85  Mich.  44 182 

Gross's  License,  161  Pa.  St.  344 276 

Grumbach  v.  Lelande  (Cal.  S.  C.  1908),  98  Pac.  1058 100,  156,  157,  270 

Grummon  v.  Holmes,  76  Ind.  585 264 

Guedert  v.  Emmet  County,  116  Iowa  40 180,  199 

Guenther  v.  Day,  6  Gray  (Mass.)  490 520 

isey  v.  McHaley  (Oreg.  1909),  98  Pac.  158 391 

kson  v.  Gjorud,  82  Mich.  503 436 

Guptill  v.  Richardson,  62  Me.  257 520,  538,  540 

Guerrero  In  re,  69  Cal.  88 223 

Gulf  Brewing  Co's  License,  11  Pa.  Co.  Ct.  R.  346 235 

Gullickson  v.  Gjorud,  89  Mich.  8 341 

GundUng  v.  Chicago,  177  U.  S.  183 82 

Gunnarssohn  v.  City  of  Sterling,  92  111,  569 134,  138,  169,  685 


TABLE    OF    CASES.  ]jji 

3E(   Mo.  - 

Gustafson  v.  Wind,  62  [owa  2si 4-1 1 

Guy  v.  Commissions,  L22  N.  C.  471 (52,  81,  -■:,  87,  98 

Guy  v.  State,  96  Md.  692 688 

H 

Haas  v.  Peruick,  31  Ohio  C.  C.  591 

Backettv.  Smelsley,  77  111.  109 435,443,465,  473,475,  481,485,  486 

Baddox  v.  County  of  Clark,  79  Va.  677 391 

Baehnle  Brew.  Co.  V.  Board  of  Supervisors  (Mich.  1909),  121  X.  W.  209 403 

Ilafter  v.  State,  51  Ala.  37 653,  65 1 

Hagerty  v.  Tuxbury,  181  Mass.  126 295 

1  [aggart  v.  Stehlin,  137  Ind.  43 190,  618 

Baight,  Matter  of,  33  Misc.  R.  (N.  Y.)  544 246 

Haines  v.  Hanrahan,  105  Mass.  480 18 

Haines  v.  State,  7  Tex.  App.  1 117 

Hainline  v.  Commonwealth,  13  Bush.  (Ky.)  350 288 

Halan  v.  Richmond,  108  Iowa  161 . .    632 

Balberg  Mercantile  Co.  v.  State  ( Miss.  1909),  48  So. 622 551 

Balbran,  Matter  of,  30  Misc.  R.  (X.  Y.)  515 319 

Balfmaa  v.  Spreen,  75  Iowa  309 626 

Ball  v.  Barnes,  82  111.  228 459,  460 

Ball  v.  Caffln,  108  Iowa  466 627 

Hall  v.  Dunn  (Oreg.  1908),  97  Pac.  811 71,  123,  204 

Hall  v.  Germain,  131  N.  Y.  536 442 

Hall  v.  McKechine,  22  Bush.  (X.  Y.)  244 565,  567 

Hall  v.  Salomon,  61  Conn.  476 623 

Ball  Ex  parte  (Ala.  1908),  47  So.  199 90 

Ilallbeck  v.  State  (Fla.  1909),  49  So.  153  368,  386 

Balverstadt  v.  Berger,  72  Neb.  462 276 

Hainer  v.  Eldridge,  171  Mass.  250 567 

Hamilton  v.  McKinney,  23  Ky.  Law  R.  1341 276 

Hamilton  v.  Rathbone,  175  U.  S.  414  65 

Hammond  v.  King,  137  Iowa  548 608 

Hancock  v.  Bugham,  31  Ky.  Law  Rep.  427 :;T^ 

Handler  Ex  parte,  1  76  Mo.  383,  386 368,  370 

Banewacker  v.  Ferman,  47  111.  App.  17 460,  490 

Baney  Ex  parte,  51  Tex.  Cr.  634  386 

Banlon  v.  State,  51  Ark.  186 671 

Hans  v.  State,  50  Neb.  150 661,   667,   68  I 

Bansberg  v.  People,  120  111.  21 22 

Harrison  v.  Dickenson  (Tex.  Civ.  1908),  113  S.  W.  776 070 

Sanson  v.  Luce,  50  Ohio  St.  440 228 

Barbaughv.  City  of  Monmouth,  71  111.867 155,  138,   139 

Bardesty  v.  Bine,  135  Ind.  72 264 

Harding  v.  Commonwealth.  105  Ya.  858 677 

Bardison  v.  Stat.',  95  Ga.  337 651 

Harlan  v.  Richmond,  108  Iowa  161 112,  632 

Harlan  v.  Matt,  136  Ala.  150 90,  249,   271 


HV  TABLE    OF    CASES. 

SECTIONS 

Harmer  In  re  Petitioner,  47  Kan.  262 632 

Harp  v.  Commonwealth,  22  Ky.  Law  Rep.  1792 558 

Harper,  Matter  of,  30  Misc.  R.  (N.  Y.)  663 246,  257 

Harper  v.  State,  85  Miss.  338 590 

Harrington  v.  McKillop,  132  Mass.  567 487 

Harris  v.  Intendant  &  Council  of  Livingston,  28  Ala.  577 136 

Harris  v.  Sheffield,  128  Ga.  299, 412 

Harris  v.  State,  50  Ala.  127 654 

Harrison  v.  People,  195  111.  466. . .  .  248,  254 

Hart  v.  Duddleson,  20  111.  App.  612 429 

Hart  v.  State,  88  Ga.  635 225 

Hartley  v.  Henretta,  33  W.  Va.  222 636 

Hartung  v.  People,  22  N.  Y.  99,  100 426 

Hastings  Brewing  Co.  In  re  (Neb.  1908),  119  N.  W.  27 235 

Hatcher  v.  State,  80  Tenn.  368 104 

Hatfield^.  Commonwealth,  120  Pa.  St.  395 36 

Hawks  v.  Fellows,  109  Iowa  133 635 

Hawkins  v.  Litchfield  Common  Council,  120  Mich.  390 343 

Hawkins,  Matter  of,  165  N  Y.  188 246,  257 

Hawlens  License,  3  Pa.  Co.  Ct.  R.  474 300 

Hayes  v.  Phelan,  4  Hun  (N.  Y.)  733 421,  487 

Hayes  Ex  parte,  98  Cal.  555 ...  .115,  163 

Haynes  v.  Cass  County  Court  (Mo.  1909),  115  S.  W.  1084 413 

Head  v.  Doekleman,  148  Ind.  145  276 

Headington  v.  Smith,  113  Iowa  107 340,  566,  568 

Hearn  v.  Brogan,  64  Miss.  334 245,  375 

Heath  v.  Farnham,  53  Me.  172 533 

Heath  v.  State,  105  Ind.  342 291,  298 

Heblick  v.  Judge,  10  Ky.  Law  Rep.  811 271 

Heck  v.  State,  44  Ohio  St.  536 .63,  103 

Hedderick  v.  State,  101  Ind.  564 120 

Hedges  v.  Titus,  47  Ind.  145 112,  192 

Heff,  Matter  of,  197  U.  S.  488 43 

Heiligs  License,  12  Pa.  Co.  Ct.  538 300 

Heinssen  v.  State,  14  Colo.  228 151,  232 

Hein  v.  Smith,  13  W.  Va.  358 268 

Heintz  v.  La  Page, 100  Me.  542 3 

Hellerman  v.  Arnold,  71  111.  632 474 

Helmuth  v.  Bell,  150  111.  263 441,  448,  492 

Hemmer  v.  Bosson,  139  Iowa  210 024 

Hemmens  v.  Bentley,  32  Mich.  89 481 

Hencke  v.  Standiford,  66  Ark.  535 196,  197 

Henderson  v.  Heynard,  109  Ga.  373 146 

Henderson  v.  State,  49  Tex.  Cr.  269 680 

Hendersonville  v.  Price,  96  N.  C.  423 297 

Henke  v.  Mc  Cord,  55  Iowa  378 146 

Henkel  v.  Hoy,  74  N.  J.  L.  56 293 

Henry  v.  Barton,  107  Cal.  535 270 

Henry  v.  State,  26  Ark.  523 189,  190 

Henry  v.  State,  64  Ark.  496 676,  66 


TABLE    OF    CASES.  lv 

SF.rr  I 

Henry  v.  State,  113  Ind.  304 665 

Henry,  Mutter  of,  56  App.  Div.  (X.  Y.)  868   Ill 

Hensley  v.  Metcalfe  County  Court,  115  Ky.  810,  811 260,  276 

Ilenwood  v.  State   41  Miss.  579 124 

Herine  v.  Commonwealth,  13  Bush.  (Ky.)  295 642 

Hering  In  re  (X.  Y.  C.  A.  1909),  X.  Y.  L.  Journal  Nov.  4,  1909 259 

Hernig  In  re  (X.  Y.  App.  Div.  1909),  117  N.  Y.  Supp.  747 80,  194,  259 

Herod  v.  State,  41  Tex.  Cr.  597 679 

Hershoff  v.  Beverly,  45  X.  J.  L.  288 206,  207 

Hess  v.  Appell,  62  How  Pr.  (X.  Y.)  313 • 559 

Hestrand  v.  State,  28  Ky.  Law  Rep.  1315 683 

Hetzer  v.  People,  4  Colo.  45 218 

Hevren  v.  Reed,  126  Cal.  219 186,  187 

Hewitt  v.  People,  186  111.  336 29 

Hewitt  v.  People,  89  111.  App.  367 28 

Hewitt's  Appeal,  76  Conn.  685 279,  286 

Heyman  v.  Southern  Ry.  Co.,  203  U.  S.  270 54,  58 

Heyman  v.  State,  64  Ga.  437 652 

Heyman  Ex  parte,  45  Tex.  Cr.  532 397. 

Hibbard  v.  People,  4  Mich.   125 501 

Hiers  v.  State,  52  Fla.  25 688 

Higgins  v.  State,  64  Md.  419 379 

Higgins  v.  Talty,  157  Mo.  280 107,  186,  187 

High  v.  State  (Okla.  1909),   101  Pac.  115 57 

Hight  v.  Fleming,  74  Ga.  593 198 

Hilliard,  Matter  of,  25  App.  Div.  (X.  Y.)  222 188 

Hill  v.  Commissioners  of  Decantir,  22  Ga.  203 139 

Hill  v.  Mayor  of  Dalton,  72  Ga.  314 152,  554,  648 

Hill  v.  Perry,  82  Ind.  28 240 

Hill  v.  Sheridan,  128  Mo.  App.  415  188,  298 

Hill  v.  Thixton,  94  Ky.  96 , 295 

Hilliker  v.  Farr,  149  Mich.  444 438,  450,  461 

Hine  v.  Belden,  27  Conn,  384 545 

Hillman  v.  Gallagher  (Tex.  Civ.  App.  1909),  120  S.  W.   505 342,  363,  366 

Hillsboro  v.  Smith,  110  X.  C.  417 270 

Hinchman  v.  Stoepel,  54  X.  J.  L.  486 378 

Hinkle  v.  Commonwealth,  25  Ky.  L.  Rep.  313 661 

Hinkle  Ex  parte,  104  Mo.  App.  104 154,  216 

Ilinton  v.  Slate,  132  Ala.   29,  31 13.    35 

Hinton  v.  State,  68  Ga.  322 643 

Hippen  v.  Ford,   129  Cal.  315 272 

llirn  v.  State.  1  Ohio  St.  15 193,   234 

Hitchner  v.  Ehlers,  44  Iowa  44 489 

Hoboken  v.  Goodman,  08  X.  J.  L.  217 77,  81,  207,  115,  304 

Hoboken  v.  Grenier,  68  X.  J.  L.  592  162 

Bodge  v.  state,  lit;  Ga,  852 33 

Hodges  v.  Metcalf  County  Court,  116  Ky.  254 270,   270 

Hodges  v.  Metcalf  County  Court,  117  Ky.  619 174,   240 

Hodges  v.  Metcalf  County  Court.  25  Ky.  Law  Rep.  1553 240 

Hodgman  v.  People,  4  Den.  235 648 


lvj  TABLE    OF    CASES. 

SECTIONS 

Hogens  v.  Police  Jury,  121  La.  634 412 

Hogue  v.  City  of  Ashland,  91  Wis.  629 199 

Hoinire  v.  Hali'man.  156  liid.  470 431 

Romberg  Mercantile  Co.  v.  State  (Miss.  1909),  48  So.  622 504 

Holberg  v.  Macon,  55  Miss.  112 ; 205 

Ilolcombe  v.  People,  49  111.  App.  73 37 

Holland  v.  Seagrave,  11  Gray  (Mass.)  207 ■ 523 

Holland  v.  State,  51  Tex.  Cr.   547 •  • . .  • 127 

Holland  v.  State,  51  Tex.  Cr.  143 339 

Holley  v.  State  14  Tex.  App.  505 368 

Hollis  v.  Davis,  56  N.  H.  127 422 

Hollamlaek  v.  Drake,  37  Neb.  680 260 

Holloran  v.  McCullough,  68  Ind.  179 287 

Holmes  v.  State  (Tex.  Cr.  1909),  116  S.  W.  571 376 

Holppa  v.  City  Council,  34  Wash.  554 329 

Holt  v.  State,  62  Neb.  134 202,  228 

Honey  v.  Guillaume  (Ind.  1909),  88  K  E.  937 262 

Hood  v.  State,  35  Tex.  Cr.  App.  585 676 

Hood,  Von  Glahn,  88  Ga.  405 164 

Hoover  In  re,  30  Fed.  51 77,  194 

Hoover  v.  Thomas,  35  Tex.  Civ.  App.  535 368,  399,  400 

Hopsons  Appeal,  65  Conn.  140 269,  274 

Horan  v.  Chief  Justice,  27  Tex.  226 351 

Hagan  v.  Boonton,  62  N.  J.  L.  150  304 

Horn  v.  Smith,  77  111.  381 460,  491 

Hornaday  v.  State,  43  Ind.  306 253 

Horning  v.  Wendell,  57  Ind.  171 192,  420 

Horton  v.  Parsons,  37  Hun.  (K  Y.)  42 559 

Hoist  v.  Lewis,  71  Neb.  365,  370 456,  460 

Hotel  Cambridge  License,  20  Pa.  Co.  Ct.  229 300 

Horton  v.  License  Commissioner,  19  R.  I.  650 285 

Hottendorf  v.  State,  89  Ind.  15 68 

Houch  v.  Ashland,  40  Oreg.  117. 135,  155 

House  v.  State,  41  Miss.  737 145,  242,  248 

Houser  v.  State,  18  Ind.  108 673 

Houston  v.  Gran,  38  Neb.  687 436,  492 

Howard  v.  Stanfill,  31  Ky.  Law  Rep.  207 385 

Howard  v.  State,  6  Ind.  444 608 

Howell  v.  State,  71  Ga.  224 61 

]  lowed  v.  State,  124  Ga.  698 26,  638 

1  [owes  v.  Maxwell,  157  Mass,  333 339,  345,  420 

Rowland  v.  State  (Fla.  1909),  47  So.  963 215,  273 

Hovev  v.  Elliott,  107  U.  S.  409 500 

Hoyniak  License,  9  Kulp.  (Pa.)  368 244,  277 

Hubbard  v.  Lancaster,  127  Ala.  1 68 

Hubbell  v.  Polk  County,  106  Iowa  618 183 

Hudson  v.  State  (Okla.  1909),  101  Pac.  275 57 

Huff  v.  Aultman,  69  Iowa  71 481,  485 

Buffsmitb  v.  People,  8  Colo.  175 151 

Huggitos  Kavanagh,  52  Iowa  368 439,  480 


TABLE    OF    CASES.  lvii 

Hull  v.  Welsh,  82  Iowa  11? 561 

Hunt  v.  City  of  -New  York,  47  App.  Div.  (N.  Y.)295  182 

Hunter,  v.  Senn,  61  S.  C.  44 

Hunter  v.  State,  79  Ga.  865  178 

Huntington,  City  of  v.  Cheesbro,  57  Ind.  74 209 

Hunzinger  v.  State,  39  Neb.  653 83,  190,  229 

Hurl  Ex  parte,  49  Cal.  057  205,  216 

Hurley  In  re.  95  Ala.  19 134,   136 

Bussey  v.  State,  69  Ga.  51 653 

Hutson  v.  Commonwealth,  32  Ky.  Law  Rep.  392 125 


Indian  Brewing  Co's  License  In  re  (Penn.  S.  C.  1900),  75  Atl.  29 240 

Indianapolis,  City  of  v.  Bieler,  138  Ind.  30 215 

Ingersoll  v.  Skinner,  1  Den.  (N.  Y.)  540 190,  565 

Inhabitants  of  New  Gloucester  v.  Bridgham,  28  Me.  60 559,  569.  570 

Inhabitants  of  Washington  v.  Eames,  6  Allen  (Mass.)  417 '.'7 

Intendant  of  Greensboro  v.  Mullius,  13  Ala.  341 218 

Intendant  of  Marion  v.  Chandler,  6  Ala.  899 ...  216,  217,  218 

Intoxicating  Liquor  Case,  25  Hun  751 4,  37,  38,  41,  123 

Intoxicating  In  re  Liquors,  120  Iowa  680 380 

Iowa  City  v.  Mclnnerny.  114  Iowa  586 165,  608 

Irby  v.  State,  91  Miss.  5 12 418 

Ireland,  Matter  of,  41  Misc.  R.  (N.  Y. )  425 256 

Irish  v.  State,  34  Tex.  Cr.  130 393,  404 

Isley  v.  Stubbs,  5  Mass.  293 544 

Isou  v.  Mayor  of  Griffin,  98  Ga.  623 304 


Jackers  v.  Borgman,  29  Kan.  109 467,  474 

Jackaon  v.  Brooknis,  5  Hun  (K  Y.)  530-535 443,  456,  4s7.  489 

Jackson  v.  Camden,  48  N.  J.  L.  89 686 

Ja.kson  v.  Noble,  54  Iowa  641 463,  481 

Jackson  v.  People,  24  Colo.  254 151 

Jackson  v.  State,  19  Ind.  312 36,  676 

Jackson  County  v.  Schmidt  (.Mo.  App.  1910),  124  S.  W.  1071   445,  4  17 

Jacksonville  v.  Block,  36  111.  507 558 

Jacob  v.  Hogan,  73  Conn.  740 362.  365 

Jacob  v.  Holgenson,  70  Conn.  68 350 

Jacob  Pharmacy  Co.  v.  City  of  Atlantic,  89  Fed.  244 138,  139 

Jahn  In  re  Petitioner.  55  Kan.  694 169 

James  v.  Helm,  129  Ky.  323 

James  v.  State,  124  Ga.  72 61,  72 

James  v.  State,  21  Tex.  App.   189 393 

James  v.  State,  21  Tex.  App.  353 398 

Jamison  v.  Burton,  43  Iowa  282 

Janks  v.  State.  29  Tex.  App.  233 600 


]vjji  TABLE    OF    CASES. 

SECTIONS 

Jaro  v.  Holstein,  73  S.  C.  Ill  512 

Jarozewski  v.  Allen,  117  Iowa  633 429,  433,  447 

Jefferson  v.  People,  101  K  Y.  19 686 

Jefferson  County  v.  Rertz,  56  Pa.  St.  44 561 

Jelinek  v.  State  (Tex.  Civ.  App.  1908),  115  S.  W.  908 614,  625,  662 

Jenkins  alias  Jenks  v.  State,  4  Ga.  App.  859 550 

Jenks  v.  Pawlowski,  98  Mich.  110 625 

Jenny,  Matter  of,  19  Misc.  R.  (N.  Y.)  244 299 

Jennings,  Matter  of,  130  App.  Div.  (K  Y.)  645 318,  320 

Jensen  v.  State,  60  Wis.  577 642 

Jessey  v.  Speer,  107  Ga.  828 398 

Jessee  v.  De   Shong  (Tex.  Civ.  App.  1907),  105  S.  W.  1011 421 

Jewell  v.  Welch,  117  Mich.  65 440 

Jockers  v.  Borgman,  27  Kan.  109 490 

Johnson  v.  Alkins,  44  Fla.   185 199 

Johnson  v.  Drummond,  16  111.  App.  641 429,  430 

Johnson  v.  Fayette,  148  Ala.  497 214,  216 

Johnson  v.  Gumininger,  83  Iowa  10 460 

Johnson  v.  Johnson,  145  Mich.  586 434,  465 

Johnson  v.  Johnson,  100  Mich.  326 446 

Johnson  v.  People,  83  111.  431 642 

Johnson  v.  Perkins,  48  Vt.  572 551 

Johnson  v.  Rolls,  97  Tex.  453 421 

Johnson  v.  Schultz,  74  Mich.   75 453,  454,  463,  480 

Johnson  v.  State,  152  Ala.   61   293 

Johnson  v.  State,  40  Ark.  453 643 

Johnson  v.  State,  60  Ga.  634 228 

Johnson  v.  State,  52  Tex.  Cr.  624 408,  411 

Johnson  v.  Williams,  48  Vt.  565 536,  545 

Johnson,  Matter  of,  Misc.  R.  (N.  Y. )  498 254,  334 

Johnson's  License,  156  Pa.  St.  322 269 

Johnston's  License,  37  Pa.  Super.  Ct.  438 113 

Jones  v.  Bates,  26  Neb.  693  425,  456,  492 

Jones  v.  Commissioners,  106  N.   C.  436 194,  271 

Jones  v.  Fletcher,  41  Me.  254 527,  538,  539 

Jones  v.  Paducah  (Ky.  C.  A.  1909),  115  S.  W.  801 353 

Jones  v.  People,  14  111.  196 83 

Jones  v.  Root,  6  Gray  (Mass.),  435 534 

Jones  v.  State,  67  Md.  256 379 

Jones  v.  State,  46  Tex.  Cr.  517 661 

Jones  v.  State,  38  Tex.  Cr.  533 408 

Jones  v.  State,  32  Tex.  Cr.  533 117 

Jones  v.  Surprise,  64  N.  H.  243 10 

Jones  v.  Yokum  S.  D.  1919,  123  N  W.  272 288 

Jones  County  v.  Sales,  25  Iowa  25 .  365 

Jordan  v.  Bespalec,  86  Minn.  441 230 

Jordan  v.  Nicolin,  84  Minn.  370 670 

Jordan  v.  State,  22  Fla.  528 643 

Jordan  v.  State,  37  Tex.  Cr.  222  406 

Judge  v.  Flournoy,  74  Iowa  164 441 


TABLE    OF    CASES.  1JX 

SECTIONS 

Jud^e  v.  Jordan,  81  Iowa  519 461 

Judge  v.  Kahl,  74  Iowa  486 624 

Judge  v.  Kirk,  71  Iowa  183 622.  639 

Judge  v.  O'Connor,  74  Iowa  166 441 

Jugenheinier  In  re  (Neb.  1908),  116  N.  W.  964,  966 368 

Junction  City  v.  Webb,  44  Kan.  71 643 

Jung  Brewing  Co.  v.  Commonwealth,  30  Ky.  Law  Rep.  267 293 

Jung  Brewing  Co.  v.  Frankfort,  100  Ky.  409 211,  236 

Jury  v.  Ogden,  56  111.  App.  100 470,  472 

K 

Kadgihn  v.  City  of  Bloomington,  58  111.  229 230 

Kallock  v.  Newbert  (Me.  1908),  72  Atl.  736 538 

Kammann  v.  People,  124  111.  481 684 

Kane  v.  Commonwealth,  89  Pa.  St.  522 117 

Kansas  v.  Flanders,  71  Mo.  281 219 

Karan  v.  Pease,  45  111.  App.  382 478 

Karr  v.  Stahl,  75  Kan.  387 544 

Kaufman  v.  Dostal,  73  Iowa  691 83,  86 

Kearney  v.  Fitzgerald,  43  Iowa  580 435,  485 

Kee  v.  McSweeney,  15  Abb.  N.  C.  (N.  Y.)  229 567 

Keeling  v.  Poriner  (Neb.  1909),  120  N.  W.  155 464 

Keeper  v.  Board  Supervisors,  109  Mich.  645 416 

Keepper  v.  State,  121  Ind.  491 671 

Kehr  v.  Columbia  (Mo.  1909),  116  S.  W.  428 412 

Kehrig  v.  Peters,  41  Mich.  475 436,  437,  458 

Keiser  v.  Lives,  57  Ind.  431 240.  286 

Keiser  v.  State,  58  Ind.  379 201 

Keiser  v.  State,  78  Ind.  430 227,  289 

Kellar  v.  State,  11  Md.   525 190 

Kellar's  Petition,  9  Pa.  Dist.  R.  340 300 

Keller  v.  Lincoln,  67  111.  App.  406 439 

Kellerman  v.  Arnold,  71  111.  632 465 

Kelley  v.  Pittsburgh,  104  U.  S.  78 500 

Kelley  v.  State,   37  Tex.   Cr.  220 406 

Kelly  v.  Dwyer,  7  Lea.  (Tenn.)  180 0:::'. 

Kelly  v.  Faribault,  83  Muin.  9 17"' 

Kelminski's   License,  164  Pa.  St.  231 209 

Kelty  v.  State,  61  N.  J.  L.  407 654 

Kennedy  v.  Favor,  14  Gray  (Mass.)    200 531 .  534 

Kennedy  v.  Garrigan  (S.  D.  1909),  121  N.  W.  7S;5 420.  421.  455 

Kennedy  v.  Saunders.  142  Mu<s.  0 44").    1 10 

Kennedy  Bros.  v.  Sullivan,  130  111.  94 436 

Kennedy  Ex  parte,  23  Tex.  App.  77 369    397 

Kennon  v.  Blackbun,  31  Ky.  Law   Rep.  1256 375 

Kent  v.  Wffley,  11  Gray  (Mass. )   368 507 

Kentucky  Club  v.  City  of  Louisville,  92   Ky.  309 583 

Keokuk  City  of  v.  Dresscll,  47  Iowa  597 209 


]x  TABLE    OF    CASES. 

SECTIONS 

Kerkow  v.  Bauer,  15  Neb.  150,  155 21,  492,  493 

Kern  v    Board  of  Supervisors  (Mich  1910),  124  N.  W.  491 383 

Kerper's  License,  21  Pa.  Super.  Ct.  512 298 

Kerr  v.  Mohr  (Tex.  Civ.  1907),  103  S.  W.  210 375 

Kerr  v.  State.  63  Neb.  115 674 

Kessler,  Matter  of,  163  N.  Y.  205 257,  311,  312 

Ketcham  v.  Fox,  52  Hun.  (N.  Y.)  284 443,  467 

Kettern  v.  State,  72  Ark.  90 178,  386 

Kidd  v.  Board  of  Excise  (N.  J.  1909),  73  Atl.  59 226 

Kidd  v.  Pearson,  128  U.  S.  1 45,  48,  51,  83 

Kidd  v.  Truett,  28  Tex.  Civ.  App.  618 378 

Kidd  In  re,  5   Cal.  App.   159 206 

Kidder  v.  Knox,  48  Me.  551 97,  98 

Kilburn  v.  Coe,  48  How.  Prac.  (N.  Y.)   144 453 

Killinger  v.  Clement,  131  App.  Div.  (N.  Y.)   461 378 

King  v.  Haley,  86  111.  106 457,  472,  497 

King  v.  Jacksonville,  3  111.  305 553,  554,  563 

King  v.  State,  79  Ind.  488 673 

King  v.  State,  58  Miss.  737 40 

King  v.  State,  33  Tex.  Cr.  547 395 

King  Ex  parte,  52  Tex.  Cr.  R.  383 71,  81,  101,  156 

Kingston  v.  Osterhoudt,    23  Hun  (N.  Y.)  66 289,  361 

Kinmundy  v.  Mahan,  72  111.  462 149 

Kirchner  v.  Myers,  35  Ohio  St.  85 487 

Kissel  v.  Lewis,  156  Ind.   233 618 

Kirkland  v.  State,  72  Ark.   171 499,  500,  546 

Kirkwood  v.  Antenreitk,  11  Mo.  App.  515 671 

Kitcham  v.  Fox,  52  Hun.  (N.  Y.)    284 443 

Kitson  v.  Mayor,  26  Mick  325 15 

Kizer  v.  Randleman,  50  N.  C.  428 35 

Klamm  In  re  (Neb.  1908),  117  N.  W.  991 241,  249,  284 

Klare  v.  State,  43  Ind.  483 22 

Kleedy  v.  Howe,  72  111.   133 465 

Klein  v.  Livingston  Club,  177  Pa.  St.  224  69,  598 

Kleppe  v.  Gard  (Minn.  1909),  123JN.  W.  665 372 

Kliment  v.  Corcoran,  51  Neb.  142 478,  485 

Knapp  v.  Scanlin,  36  Misc.  R.  (N.  Y.)  756 335,  336 

Knarr's  Petition,  127  Pa.  St.  554 271 

Kniper  v.  City  of  Lousiville,  7   Bush.  (Ky.)  599 135,  145,  204,  217 

Knott  v.  Peterson,  125  Iowa  404  363,  488 

Knox  v.  Rainbow,  111  Cal.   539 276 

Knox  In  re.  64  Ala.  463 204 

Koch  v.  Commonwealth,  27  Ky.  Law  Rep.  122 218 

Koenig  v.  State,  33  Tex.  Cr.  367 601 

Koerber  v.  Board  of  Supr's.  (Mich.  1909),   120  N.  W.  8 383 

Koerner  v.  Oberly,  5G  Ind.   284 420,  463,  465 

Kohler  Ex  parte,  74  Cal.  38,  39 69,  131 

Rolling  v.  Bennett,  18  Ohio  C.   C.   425 435,  459 

Koofman  V.  State,  61  Ala.   70 651 

Koop  v.  People,  47  111.  317 678 


TABLE    OF    CASES.  Ixi 

Krach  v.  Ileilman,  58  Ind.  517 420,  1-7 

Krant  v.  State,  17  Ind.  519 291 

Kreiter  v.  Nichols,  28  Mich.  490 420,  486,  402 

Kresser  v.  Lyman,  74  Fed.  765 82,  186,   187  195 

Kroer  v.  People,  78  111.  294 659 

Krueger  v.  Colville,  49  Wash.  295 187,  303,  304 

Krinivek  v.  State,  38  Tex.  Cr.  44 601 

Krug  Application,  In  re,  72  Neb.  576 270,  280 

Kruger  v.  Spachek,  22  Tex.  Civ.  App.  307 401 

Kruger,  Matter  of,  59  App.  Div.  (N.  Y.)  346 416 

Krumbholz,  Matter  of,  60  Misc.  R.  (N.  Y.)  534 403 

Kurth  v.  State,  86  Tenn.  134 178 

Kr/.ykwa  v.  Croninger,  200  Pa.  St.  359 181 

Kunkel  v.  Abell,  170  Ind.  305 244,  251 

Kurth  v.  State,  86  Tenn.  134 178 

Kurtz  v.  People,  33  Midi.  279 112,  118 


Lachman  v.  Walker,  52  Fla.  297 205,  209,  214 

La  Croix  v.  County  Commissioners,  49  Conn.  591 186,  187,  190,  303 

La  Croix  v.  County  Commissioners,  50  Conn.  321 186,  303,  313 

Lafler  v.  Fisher,  121  Mich.  60 454,  488 

La  France  v.  Krayer,  42  Iowa  143 439,  456 

Laib  &  Co.  v.  Hare,  163  Pa.  St.  481 300 

Lambert  v.  Rahway,  58  N.  J.  L.  578 322 

Lambert  v.  State,  37  Tex.  Cr.  232 383 

Lambir  v.  State,  151  Ala.  86 686 

Landrum  v.  Flannigan,  60  Kan.  436 423,  494 

Landt  v.  Remley,  113  Iowa  555 631 

Lane  v.  Tippy,  52  111.  App.  532 439,  445 

Lane  v.  State,  49  Tex.  Cr.  335 683 

Langan  v.  People,  32  Colo.  414 643 

La  Norris  v.  State,  13  Tex.  App.  33 291 

Lantz  v.  Hightstown,  46  N.  J.  L.  102     186,  305 

Lantzmester  v.  State,  19  Tex.  App.  320 652 

Largley  v.  Ergensinger.  3  Mich.  314 79 

Larzelere  v.  Kirchgessner,  73  Mich.  276 480,  490 

La! all  County,  5  Ida.  19 175 

Laugel  v.  City  of  Bushnell,  197  111.  20 570,  613 

Laugel  v.  City  of  Bushnell,  96  111.  App.  618 570,  613 

Laurence  v.  Gracy.  11  Johns.  (X.  Y)  179 231 

Lauten  v.  Alleustown,  58  N.  H.  289 97 

Lawrence  v.  State,  7  Tex.  App.  192 117 

Lawrence,  In  re,  09  Cal.  008  223,  232 

Lawrenceburg,  City  of,  v.  Wuest,  16  Ind.  887 200 

Lawson  v.  Commonwealth,  23  Ky.  Law  Rep.  1988 127 

Lea  v.  State.  04  Miss.201 643 

Leahey's  License,  13  Pa.  Co.  Ct.  R.  430 300 


]xii  TABLE    OF    CASES. 

SECTIONS 

League  v.  Ehimke,  120  Iowa  464 447,  479,  482 

Lee  v.  Roberts,  3  Okla.  106 196 

Lee  v.  Shull  (Ind.  1909),  88  N.  E.  522 263 

Legg  v.  Anderson,  116  Ga.  401 615 

Lehman  v.  Porter,  73  Miss.  216 402 

Lehritter  v.  State,  42  Ind.  482 193 

Leibeknechts'  License,  14  Pa.  Co.  Ct.  R.  571 300 

Leigh  v.  Wester velt,  9  N.  Y.  Super.  Ct.  (2  Duer.)  618 268 

Leisy  v.  Hardin,  135  U.  S.  100 51 

Lemington  v.  Blodgett,  37  Vt.  215 97 

Leinly  v.  State,  70  Miss.  241 17 

Lemon  v.  Peyton,  64  Miss.  161 383,  386 

Lemp  v.  Fullerton,  83  Iowa  192 544 

Leonard  v.  City  of  Canton,  35  Miss.  189 135,  212,  214 

Leslie  v.  Commonwealth,  107  Mass.  215 537 

Lester  v.  Miller,  76  Miss.  309 390 

Lester  v.  Price,  83  Va.  648 293 

Levy  Ex  parte,  43  Ark.  42 269 

Lewis  v.  Brennan  (Iowa  1909),  117  N.  W.  279. . .    634 

Lewis,  Matter  of,  26  Misc.  R.  (N.  Y.)  532 257,  258 

License  Cases,  5  How.  (U.  S.)  504,  586 48,  50,  51,  83 

License  Commissioners  v.  O'Connor,  17  R.  I.  40 321 

License  Tax  Case,  5  Wall.  462 84 

Licks  v.  State,  42  Miss.  316 218 

Liebler  v.  Carrell,  155  Mich.  196 448,  450 

Ligonier,  Town  of,  v.  Ackerman,  46  Ind.  552 199 

Liggett  v.  People,  26  Colo.  364 685,  686 

Liles  v.  State,  43  Ark.  95  683 

Lillianfelds'  Case,  92  Va.  818 322 

Lincoln  v.  Smith,  27  Vt.  328 83,  498,  524,  549,  672,  682 

Lindley  v.  State  (Ark.  1909),  120  S.  W.  987 368 

Lipari  v.  State,  19  Tex.  App.  431 381 

Lipman  v.  State,  19  Tex.  App.  431 381,  405 

Liquors  of  Horgan,  In  re,  16  R.  I.  542 498 

Liquor  Hoxsie,  In  re,  15  R.  I.  241 517,  525,  551 

Liquor  Locations,  In  re,  13  R.  I.  733 .    ...  258 

Liquors  of  McSoley  In  re,  15  R.  I.  608 502 

Liquors  of  Young,  In  re,  15  R.  I.  243 509,  525 

Liquors  of  Peter  Germain,  In  re,  (State  v.  Certain  Liquors),  21  R.  I  531 519 

Litch  v.  The  People,  19  Colo.  App.  421 138 

Littell  v.  Young,  5  Pa.  Super.  Ct.  265 496 

Little  Chute  v.  Van  Camp,  136  Wis.  526 168 

Littleton  v.  Frit/.,  05  Iowa  488  610,  612,  617,  624 

Littleton  v.  Harris,  73  Iowa  167 621,  624 

Livingston  v.  Corey,  33  Neb.  366 249,  285 

Livingston,  Matter  of,  62  Misc.  R.  (N.  Y.)  334 381 

Livingston,  Matter  of,  24  App.  Div.  (N.  Y.)  51 188 

Lloyd  v.  Canon  City  (Colo.  S.  C.  1909),  103  Pac.  288 576 

Lloyd  v.  Kelly,  48  111.  App.  554 435 

Loan  v.  Etzell,  62  Iowa  429 460 


TABLE    OF    <  A£  ]xjjj 

:  fONfi 

Loan  v.  Iliney,  53  Iowa  89 )  v 

Lockanl  v.  Van  Alstyae,  155  Mich.  507 127 

Locke  v.  Commonwealth,  25  Ky.  Law  Rep.  70 19,  374 

Locke  v.  Commonwealth,  23  Ky.  L.  Rep.  740 646 

Locke's  Appeal,  72  Pa.  St.  491 

Lodano  v.  State,  25  Ala.  04 112,  121 

Loeb  v.  Duncan,  63  Miss.  89 245 

Loeb  Ex  parte,  Fed.  657 

Lofton  v.  Collins,  117  Ga.  434 147 

Loftus  v.  Hamilton,  105  111.  App.  72  431 

Logan  City  v.  Buck,  3  Utah,  301,  307 138 

Loid  v.  State,  104  Ga.726 :;;, 

Long  v.  Green,  100  Tex.  510 341 

Long  v.  Green  (Tex.  Civ.  1906),  95  S.  TV.  79 341,  368,  376 

Long  v.  Joder,  139  Iowa  471 629 

Long  v.  State,  27  Ala.  32 295 

Long  v.  State  (Ala.  1910),  51  Lo.  636 384,  418 

Long  v.  State,  56  Ind.  206 576 

Lonsdale  Co.  v.  License  Commissioners,  18  R.  I.  5 262 

Lord  v.  Chadbourne,  42  Me.  429 544,  614 

Lord,  Matter  of,  32  Misc.  R.  (X.  Y.)  223 254 

Lossman  v.  Knights,  77  111.  App.  670 450 

Louisiana,  City  of  v.  Anderson,  100  Mo.  App.  341 662 

Louisville  v.  Cain  (Ky.  C.  A.  1909),  119  S.  W.  763 331,  348 

Louisville  v.  Gagen  (Ky.  1909),  116  S.  W.  745 269,  274,  276.  284 

Louisville  v.  Gagen  (Ky.  C.  A.  1909),  118  S.  TV.  947 274 

Louisville  v.  Hendricks  (Ky.  C.  A.  1909),  116  S.  TV.  747  284 

Louisville,  City  of  v.  Kean,   18  B.  Mon.  (Ky.)  9 151,  269 

Lovelaw  v.  Briggs,  32  Hun  (X.  Y.)  477 460 

Loveless  v.  State,  40  Tex.  Cr.  221 405 

Lovingston  v.  Board  of  Trustees,  99  111.  564 189 

Lowrey  v.  Gridley,  30  Conn.  450  519,  529,  676 

Lucas  County  v.  Leonard,  107  Iowa  593 180 

Lucio  v.  State,  35  Tex.  Cr.  320 699,  670,  686 

Lucker  v.  Liske,   111  Mich.  683 463 

Ludwig  v.  Cory,  158  Ind.  582 262,  263 

Ludwig  v.  State,  18  Ind.  App.  518 275,  276 

Lueken  v.  People,  3  111.  App.  375 430 

Lunts'  Case,  6  Me.  412 190 

Luton  v.  Circuit  Judge  of  Xewaygo  County,  69  Mich.  610 .v.? 

Lutz  v.  City  of  Crawfordsville,  109  Ind.  466 144,  185,  204,  20<».  ! 

Lyman  v.  Brucker,  26  Miss.  R.  (N.  Y.)  594 844,  351,  359 

Lyman  v.  Cheever,  108  N.  Y.  43 358 

Lyman  v.  Gramercy  Club,  39  App.  Div.  (X.  X.)  661 348,  596 

Lyman  v.  Gramercy  Club,  28  App.  Div.  (X.  Y.)  30 558 

Lyman  v.  Kane,  57  App.  Div.  (X.  Y.)  549 357,  367 

Lyman  v.  Kurtz,  166  X.  Y.  274 351 

Lyman  v.  McGreivey,  25  App.  Div.  (X.  Y)  68 175 

Lyman  v.  Mead,  50  App.  Div.  (X.  Y.)  582.  ..    :::,? 

Lyman  v.  Murphy,  33  Misc.  R.  (X.  Y.)  349 311 


Ixiy  TABLE    OF    CASES. 

SECTIONS 

Lyman  v.  Ouseani,  33  Misc.  R.  (N.  Y.)  409 350 

Lyman  v.  Perlmutter,  1GG  N.  Y.  410 348 

Lyman  v.  Sehermerhom,  53  App.  Div.  (N.  Y.)  32 357 

Lyman  v.  Sehermerhom,  167  N.  Y.  113 357 

Lyman  v.  Shenandoah  Club,  39  App.  Div.  (N.  Y.)  459 348,  349,  363 

Lyman  v.  Siebert,  31  Misc.  R.  (N.  Y.)  285 365 

Lyman,  Matter  of,  28  App.  Div.  (N.  Y.)  127 595 

Lyman,  Matter  of,  28  App.  Div    (N.  Y.)  209 315 

Lyman,  Matter  of,  28  Misc.  R.  (N.  Y.)  278 246 

Lyman,  Matter  of,  34  App.  Div.  (N.  Y.)  389 257 

Lyman,  Matter  of,  44  App.  Div.  (N.  Y.)  507 313 

Lyman,  Matter  of,  46  App.  Div.  (N.  Y.)  387 323,  327 

Lyman,  Matter  of,  48  App.  Div.  (N.  Y.)  275 259,  306 

Lyman,  Matter  of,  53  App.  Div.  (N.  Y.)  330 321 

Lyman,  Matter  of,  59  App.  Div.  (N.  Y.)  217 309,  327,  332 

Lyman,  Matter  of,  24  Misc.  R.  (N.  Y.)  552 256 

Lyman,  Matter  of,  26  Misc.  R.  (N.  Y.)  300 :    319,  338 

Lyman,  Matter  of,  26  Misc.  R.  (N.  Y.)  568 256 

Lyman,  Matter  of,  26  Misc.  R.  (K  Y.)  629 • 175 

Lyman,  Matter  of,  27  Misc.  R.  (N.  Y.)  327 305 

Lyman,  Matter  of,  29  Misc.  R.  (N.  Y.)  525 337 

Lyman,  Matter  of,  32  Misc.  R.  (N.  Y.)  621 326 

Lyman,  Matter  of   163  N.  Y.  536 246,  311,  332 

Lyman,  Matter  of,  160  KY.  96,   102 188,  293,  313 

Lynch,  In  re,  (Del.  1909),  75  Atl.  41 235 

Lynn  Ex  parte,  19  Tex.  App.  293. 369,  376 

Lydick  v.  Korner,  13  Neb.  10. . . . '. 276 

Lynch  v.  Bates,  139  Ind.   206 241 

Lynch  v.  State,  147  Ala.  143 295 

Lynn  Ex  parte,  19  Tex.  App.  293 382,  383 

Lyttelton  v.  Downer  (Tex.  Civ.  App.  1910),  124  S.  W.  994 272 

M 

Mace  v.  Smith,  164  Ind.  153 244 

Mackall  v.  District  of  Columbia,  16  App.  D.  C.  301 38,  83 

Mackin  v.  State,  62  Md.  244 410 

Mackin  v.  State,  51  Mo.  App.  299 403,  406 

Macleod  v.  Geyer,  53  Iowa,  615 458 

Macy  &  Co.  Matter  of,  5  App.  Div.  (N.  Y.)  70 258 

Maddox  v.  Stale,  118  Ga.  32. . .  • 637,  646,  662 

Madill  v.  Common  Council  (Mich.  1909),  120  N.  W.   355 407 

Maddison  County  v.  Powell,  75  Miss.  762 385 

Magill  v  State,  51  Tex.  Cr.  357 386 

Maier  v.  Stale,  2  Tex.  Civ.  App.  296 21,  365 

Maize  v.  State,  4  Ind.  342 370 

Malkan  v.  City  of  Chicago,  217  111.  471 206,  293 

Mallett  v.  Stevenson,  26  Conn.  428 524 

Malmos'  Appeal,  72  Conn.   1 27 1 

Malinos'  Appeal,  73  Conn.  232  274 


TABLE    OF    (  AS]  lxv 

Maloney  v.  Dailey,  67  111.  App.  427 435,  473,  481 

Manassas  Club  v.  Mobile,  121  Ala.  561 574 

Manchaster  v.  Herrington,  10  N.  Y.   1G4 559 

Mandeville,  Town  of ,  v.  Baudot  49  La.  Ann.  286 178,204 

Mandeville  v.  Band,  111   La.  800 141 

Mankato,  City  of  v.  Arnold,  3G  Minn.  62 662 

Manning  v.  Canon  City,  45  Colo.  571 576 

Manning  v.  Morris,  28  Tex.  Civ.  App.  502 .436 

Manning  Ex  parte  (Kan.  1909),  101  Pac.  464. 582 

Mansfield  v.  Inhabitants  of  Stoneham,  15  Gray  (Mass.)  149 98 

Manzer  v.  Pbillips,  139  Mich.  61 454,  478,  481 

Margoley  v.  Commonwealth,  3  Mete.  (Ky.)  405 360 

Marica  v.  Yost  (Neb.  1910),  124  N.  W.  640 250,  266 

Markle  v.  Town  Council  of  Akron,  14  Ohio  586 20 

Marks  v.  State  (Ala.  1909),  48  So.  864 2,  3,  4,  5,  7,  8,  9,  12,  13,  17,  33,  83 

Marmont  v.  State,  48  Ind.  21 580 

Marre  v.  State,  36  Ark.  222 678 

Marshall  County  v.  Knoll,  102  Iowa  573 198 

Marshall  Ex  parte,  64  Ala.  266 175,  176 

Martens  v.  People,  186  111.   314 219,  267 

Martin  v.  Blattner,  68  Iowa  286 622 

Martin  v.  State,  59  Ala.  34  ...  574 

Martin  v.  State,  30  Neb.  421 643 

Martin  v.  State,  23  Neb.  371 187,  303 

Martz's  License,  12  Pa.  Super.  Ct,  521   194 

Mason  v.  Lathrop,  7  Gray  (Mass.)  354 523 

Mason  v.  State,  1  Ga.  App.  534 3,  37,  38 

Mason  v.  State,  170  Ind.  195  105 

Massey  v.  Dunlap,  140  Ind.  350 261,  264 

Massey  Ex  parte,  49  Tex.  Cr.   R.  60 59 

Massey  In  re  Petitioner,  56  Kan.   120 544 

Mathis  v.  Commissioners,  122  N.  C.  416  268,  274 

Mathis  v.  State,  93  Ga.  38  212 

Matthews  v.  Streeter,  159  111.  399 347 

Maxwell  v.  Corporation  of  Jonesboro,  11  Heish.   (Tenn.)  257 224 

May.  In  re,  5  Am.  Bank  R.  1   298 

Mayers  v.  Smith,  121  111.  442 478 

Mayes  Ex  parte,  3'.)  Tex.  Cr.  36 388,  413 

Mayor  v.  Beasly,  1  Humph  (Tenn.)  232 205 

Mayor  v.  ('only.  32  Ga.  211 232 

Mayor  v.  Linch,  L2  Lea.  499 164 

Mayor  v.  Lumpkins,  5  Ga.  447 '-Ms 

Mayor  v.  .Moss  Hotel  Co..  113   La.  1022 

Mayor  v.  Louse,  8  Ala.  515 153 

Mayor  v.  Shattriek.  19  Colo.    L04 134,   156 

Mayor  v.  White,  46  La.  Ann.  499 204 

Mayor  &  Board  of  Trustees  v.  Moss  Hotel  Co.  112  La.  525 199 

Mayor  A:  Council  v.  Dispensary  Ooinnirs..  125  Ga.  559 66 

Mayor  of  Leesburg  v.  Putnam,  103  Ga.  110 147 


ixvi 


TABLE    OF    CASES. 


SECTIONS 

Mayson  v.  City  of  Atlantic.  77  Ga.  662 670 

McAlvon  v.  License  Commissioners,  22  R.  I.  191 194 

McCabes  License,  11  Pa.  Super.  Ct.  560 300 

McCarty  v.  Gordon,  16  Kan.  35 293 

McCarty  v.  State,  162  Ind.  218 487 

McCarty  v.  Wells,  51  Hun  (N.  Y.)  171 473 

McClanahan  v.  Breeding  (Ind.  1909),  88  N.  E.  695 77,  262,  265 

McClay  v.  Worrall,  18  Neb.  44 435,  491 

McClellan  v.   Hein,  56  Neb.  600 435 

McConkie  v.  District  Court,  117  Iowa  334 380 

McConkie  v.  Remley,  119  Iowa  512 187,  303 

McCord  v.  State  (Okla.  1909),  101  Pac.  280 50,  57,  77 

McCormick  v.  Jester  (Tex.  Civ.  App.  1908),  115  S.  W.  278 412,  413 

McCoy  v.  Clark,  109  Iowa  464 630 

McCoy  v.  Clark,  104  Iowa  491 187 

McCracken  v.  State,  71  Md.  150 558,  563 

McCreary  v.  Rbodes,  63  Miss.  308 242,  275 

McCuen  v.  State,  19  Ark.  636 151 

McCullougb  v.  Blackwell,  51  Ark.  159 383,  384 

McCusker,  Matter  of,  47  App.  Div.  (N.  Y.)  Ill 259,  321 

McCusber,  Matter  of,  23  Misc.  R.  (N.  Y.)  446 258,  259,  321 

McDaniel  v.  State,  32  Tex.  Cr.  16 409 

McDonald  v.  Casey,  84  Micb.  505 474,  486 

McDougal  v.  Malagban,  184  N.  Y.  253 102 

McDougall  v.  Gracoinini,  13  Neb.  431 460 

McDuffir  v.  State,  87  Ga.  687 8 

McEntee  v.  Spiebler,  12  Daly.  (N.  Y.)  435 457 

McGee  v.  Beall,  63  Miss.  455  245 

McGee  v.  McCann,  69  Me.  79 435,  455 

McGebee  v.  State,  114  Ga.  833 304 

McGinnis  v.  Medway,  176  Mass.  67 189,  287,  330 

McGuire  v.  Commonwealtb,  3  Wall.  387 84 

McGlasson  v.  Johnson,  86  Iowa  477 632 

McGlasson  v.  Scott,  112  Iowa  289 633 

McGlinchy  v.  Barrows,  41  Me.  74 539 

McGonnell's  License,  24  Pa.  Super.  Ct.  642 368 

McGruder  v.  State,  83  Ga.  616 374 

Mclntosb  v.  State,  140  Ala.  137 671 

Mclntyre  v.  Asheville,  146  N.  C.  475 376 

Mclnerney  v.  Denver,  17  Colo.  302 304 

McKeever  v.  Beacom,  101  Iowa  173 608 

McKibbins'  License,  11  Pa.  Super.  Ct.  421 300 

McKinney  v.  City  of  Nashville,  96  Tenn.  79 679 

McKinney  v.  Town  of  Salem,  77  Ind.  213 186 

McLane  v.  Bonn,  70  Iowa  752 498 

McLane  v.  Granger,  74  Iowa  152  632 

McLane  v.  Leicht,  69   Iowa  401 83,  610 

McLaughlin  v.  State,  45  Ind.  338 611,  637,  643 

McLaughlin  v.  Wisler,  28  Ind.  App.  61 260 


TABLE    OF    casks.  lxvjj 

SEC'l  KOTfi 

McLees  v.  Niles,  93  111  App.  422 1-1 

McLeod   v.   Scott,   21   Oreg.   94 196,  199,  270,  271,  343 

McLeod  v.  State,  33  Tex.  Civ.  App.  170 361 

McLellan  v.  Mayor,  99  Wis.  544 326 

McMahon  V.  Dumas,  96  Mich.  467 433,  447,  454 

M.Mahon  v.  Sankey,  133  111.  G3G 473,  475 

McManigal   v.   Seaton,   23   Neb.   549 460,  671 

McMaster  v.  Dyer,  44  W.  Va.  044 .450 

McMonagle   .Matter,  41   Misc.   R.    (N.  Y.)    407 246,258 

Mc.Mullen  v.  Bereau,  29  Misc.  R.   (X.  Y.)   443 381 

McNally  Ex  parte,  73  Cal.  632 212 

McXaughton  v.  Board  of  Excise,  5  Misc.  R.  (N.  Y.)  457 278 

McXay  v.  Blackburn,  ISO  Mass.  141 429,  430 

McNeal  v.  Burlington,  56  X.  J.  L.  443 278 

McXeeley  v.   Welz,   166   X.   Y.   124 299 

McXeil  v.  Collinson,  128  Mass.   313 556 

McNeil   v.   Collinson,    130   Mass.    167 450 

McNeill  v.  State,  92  Tenn.  719 118 

McXulty  v.  Toof,  116  Ky.  202 155,  166,  167,  168,  505 

McPherson  v.  Simmons,  63  Ark.  593 351 

McQuade  v.  Collins,  93   Iowa  22 568,  626 

McQuade  v.  Hatch,   65   Vt.   482 461 

McQuery  v.  State,  40  Tex.  Cr.  571 642 

McYey  v.   Manatt,  80  Iowa  132 440,  444,  456 

McYey  v.  Williams,  91  111.  App.  144 457,  471 

Me  Williams  v.  Phillips,  51  Miss.  196 , 196,  197 

Mead  v.  Stratton,  87  X.  Y.  493 434,  441,  487 

Meador  v.  Adams,  33  Tex.  Civ.  App.  167 359 

Medford  v.  State,  45  Tex.  Cr.   180 379 

Meehan  v.  Excise  Commissioners,  72  X.  J.  L.  382 44,  77,  83,  17S,  186 

Meenan's  License,  11  Pa.  Super  Ct.  579 310,  321 

Megowan  v.  Commonwealth,  2  Mete.  3 164 

Meidel  v.  Anthis,  71   111.  241 421,  463,  473.  490 

Meiser  v.   State,   57   Ind.   386 651 

Melton  v.  Moultree,  114  Ga.  462 303,  304 

Menken   v.   City  of   Atlantic,   78   Ga.   668 140,  369 

Merced  County  v.  Fleming,  111  Cal.  46 216 

Meredith  v.  Commowealth,  25  Ky.  Law  Rep.  455 276 

Mernaugh  v.  City  of  Orlando,  41   Pla.  433 135,  138,  375 

Merrinane  v.  Miller,   148   Mich.  412 427,  462.  465 

Merryfield   v.    Swift,    103    Iowa    167 622 

Messer  v.  Cross,  26  Tex.  Civ.  App.  34 413 

Metropolitan  Board  of  Excise  v.  Barrie,  3 1  X.  Y.  657 81,  186,  1^7. 

Mette   v.   MeGuckin,   IS    Neb.   323 201 

Meyer  v.  Butterbrodt,   146  111.   131. 430 

Meyer  v.  Hokon,   116    Iowa   349 380 

Meyer  v.  State,  54  Ohio  St.  242 131 

Meyer  v.  Treasurer  of  Bridgeton,  37  X.  J.  L.  160 207 

Meyers  v.  State,  121  111.  443 436 


]xviij  TABLE    OF    CASES. 

SECTIONS 

Miles  v.  State,  33  Ind.  206 289 

Miles    v.    Slate.    5    W.    Ya.    524 686 

Miller  v.  Ammon,  145  U.  S.  421 134 

Miller    v.    Drake.    113    Ga.    347 413 

Miller  v.  Gleason,  18  Ohio  C.  C.  374 453,  490 

Miller   v.    Hammers,    93    Iowa    746 466,  467 

Miller  v.  Patterson,  31  Ohio  St.  419 440 

Miller  v.  Resler   (Ind.   1909),  88  N.  E.   516 262 

Miller  v.  Shropshire,  124  Ga.  829 138 

Miller  v.  State,   107  Ind.   152 684 

Miller  v.   State,   5   How    (Miss)'  250 665 

Miller  v.  State,  3  Ohio  St.  475 81,  630 

Miller  v.   Wade,   58  Ind.   91 260 

Miller   Ex   parte,    98    Ind.    451 260 

Miller's  License,  13  Pa.  Super.  Ct.  273 247 

Miller   Re,   110  N.   Y.   216 426 

Mills  v.  Perkins,  120  Mass.  41 126 

Mills  v.  State,  53  Neb.  305 3°4 

Milne  v.  Van  Buskirk,  9  Iowa  558 635 

Minneapolis,  City  of,  v.  Olson,  76  Minn.  1 210 

Minot  v.  Doherty   (Mass.  1909),  89  N.  E.  188 483 

Minter  v.  State,  33  Tex.  Civ.  App.  182 352 

Mitchell  v.  Branham,  104  Mo.  App.  480 298 

Mitchell  v.  Commonwealth,  106  Ky.  602 41 

Mitchell  v.  Hindman,  150  111.  538 459 

Mitchell  v.  Ratts,  57  Ind.  259 427 

Mitchell  v.  State,  134  Ala.  392 9° 

Mitchell    v.    State,    97    Ga.    213 676,  686 

Mitchell  v.  State,  12  Neb.  538 558 

Mitchell,  Matter  of,  41   App.  Div.    (N.  Y.)    271 309 

Mitchell,   Ex  parte,   104   Mo.    121 368 

Mobile  v.  Phillips,  146  Ala.  158 211,  214,  237 

Mobile  v.  Richards  &  Sons,  9,8  Ala.  594 209,  233 

Mohrman  v.  State,  105  Ga.  709 574,  578 

Mohban    v.  State,  30  Ind.  226 688 

Monford   v.   State,  35  Tex.  Cr.  237 677 

Moniteau  County  v.  Bechtle,  123  Mo.  App.  673 345,  365 

Monroe  v.  People,  113  111.  620 685 

Moon    V.    Hartsuch,    137   Iowa    236 380 

Moore  v.  Ewbanks,  66  S.  C.  374 544 

Moore  v.  Indianapolis,  City  of,   120  Ind.  483 134,  186,  187,  218,  303 

Moore  v.  Keller,  1 36  Mich.  139 I17 

Moore    v.    People,    109    111.    449 339 

Moore   v.   State,    12   Ohio   St.   3S7 676 

Moore  v.  State,  96  Tenn.  544 3 

Moore   In   re    (Iowa  1908),   118  N.   W.   879 274,  276 

Moore  In   re,   66  Fed.   947 

Moores  v.  State,  58  Neb.  608 275 

Monmouth  v.  Popel,  183  111.  634 : 211 


TABLE    OF    CASES.  ]xjx 

SI  I    I 

Montgomery  v.  O'Dell,  67  Hun   (N.  Y.)   169 281 

Montpelier,  City  of,  \.  Mills  (Ind.  1908)  85  X.  E.  ''. 201,  230,  271, 

Monroe   v.   City    of    Lawrence,   44   Kan.    607 ]»i'.» 

Moran  v.  Atlantic  City  of,  102  Ga.  840 153 

Moran  v.  Creagan,  27   [nd.  App.  659 

Mornn   v.  Gallagher,   199    Mass.  486 :_•:,  \ 

Moran  v.  Goodwin,    MO   Mass.    158 420 

Morelantl  v.  State   (Okla.   1909)    101    Pac.    138 57 

Morenus  v.  Crawford,  51   Hun   (X.  Y.)   89 4^4 

Morenus  v.  Crawford,   i"«   Hun   (X.  Y.)   45 439,   156 

Morgan  v.  Commonwealth,   7  Gratt   (Va.)    592 646 

Morgan   v.   Koestner,   83   Iowa   134 622 

Morganstein  v.  Commonwealth,  94  Va.  7S7 647,  665 

Morgensen  Ex  parte  (Cal.  C.  A.  1910),  90  Pac.  1063 138 

Morris   v.   State,   47   Ind.   503 11- 

Moulton,  Matter  of,  59  App.  Div.  (N.  Y.)  25 246 

Moundsville  v.   Fountain,   27  W.   Va.    182 134 

Mount  Pleasant  v.  Greenlee,  63  W.  Va.   207 360,  367 

Moyers  License.   20  Pa.  Co.   Ct.  663 337 

Mt.  Carmel  v.  Wabash  Co.,  50  111.  69 209 

Mt.  Sterling,  City  of,  v.  King,  31  Ky.  Law  Rep.  910 214 

Mugler  v.  Kansas,  123  U.  S.  623,  671 45,  86,  610 

Mueller  v.   People,   24   Colo.   251 151 

Mueller's   Estate,    190    Pa.    St.    601 292 

Muleahy  v.   Givens,   115   Ind.   2S6 426,  430.  4.".''i 

Mulford  v.  Clewell,  21  Ohio  St.  191 463,  470,  473,  481 

Mullins  v.  City  of  Lancaster,  23  Ky.  Law  Rep.  436 172 

Munson,  Matter  of,  95  App.  Div.  (X.  Y.)  23 415 

Munz  v.  People,  90  111.   App.  647 489 

Murdoch's   Petition,    149   Pa.   St.   341 204 

Murraugh  v.  City  of  Orlando,  41  Fla.  433 138 

Murphy  v.  Board  of  Commissioners,  73  Ind.  4S3 244.  275 

Murphy  v.  Cm-ran,  24  111.  App.  475 467 

Murphy  v.  Nolan,  12(5  Mass.  542 231 

Murry  v.  People,   16  Tex.  Cr.  L28 682 

Murphy  v.  Willow  Springs  P>rewing  Co..  81    Neb.  219 449,  455 

Musick   v.  Stall-,  51    Ark.   105 

Myers  v.   Circuit    Court    (W.    Va.    1908),    63    S.    E.    201 

Myers  v.   Conway,   55   Ind.    166 427 

Myers  v.  Kirt,  64   Iowa  27 441 

Myers   v.   Kirt,   57  Iowa   421 441 

Myers    v.    People,    67    111.    435 643 

Myers  v.  State,  47  Tex.  Civ.  App.  336 -    - 

Myers  v.  State,  93   Ind.   251 21 

N 

Nagle   v.   Keller,   237    III.    t::i 472 

Nagle  v.  Keller,  141   111.  App.  441 421.  441.  443,   472 


Jxx  TABLE    OF    CASES. 

SECTIONS 

Napier  v.  Hodges,  31   Tex.  287 173 

Nast  v.  Eden,  S9  Wis.  610 268 

Nation   v.   District   of   Columbia,   38   Wash.   Law   Kep.   144 609 

National  Loan  &  I.  Co  v.  Board  of  Supervisors,  134  Iowa  527 173 

National  Loan  <fe  I.  Co.  v.  Board  of  Supervisors,  138  Iowa  11 173 

National  Sporting-  Club  Limited  v.  Cope,  82  Law  T.  R.  N.  S.  352 606 

Naught  on  v.  Lochiel,  143  111.  App.  402 466 

Neal  v.  State,  51  Tex.  Cr.  513 404,  685 

Neighbors  v.   Commonwealth,   10  Ky   Law  Bep.   594 419 

Nelson  v.   Nevels,   79   Neb.   699 492 

Nelson   v.   State,   17   Ind.   App.   403 109,  111,  186 

Nelson   v.   State,    32   Ind.   App.   88 430,  435 

Nelson  v.  United  States,  30  Fed.   112 43 

Netso   v.    State,    24   Fla.    363 24,  33,     34 

New  v.  MeKechnie,  95  N.  Y.  632 443 

New  v.  State,  34  Tex.  100 198 

Newark  v.  Essex  Club,  53  N.  J.  L.  99 594 

Newbern  v.  McCann,   105  Tenn.   159 164 

Newburgh,  Matter  of  Town,  97  App.  Div.  (N.  Y.)  438 384 

Newcomer    v.    Tucker,    89    Iowa    486 634 

Newlan  v.  President  &  Trustees  of  Town  of  Aurora,  17  111.  379 554 

Newman  v.  Jones,  55  Law  T.  E.  N.  S.  327 606 

Newman  v.  Lake,  70  Ivan.  848 303 

Newman  v.  State,  101  Ga.  534 643,  660 

Newman  v.   State,   63  Ga.   533 652 

Newman  v.  State,  7  Lea.  (Tenn.)  617 131 

Newman  v.  State,  76  Wis.  112 329 

New  Orleans,  City  of,  v.  Guth,  11  La.  Ann.  405 178 

New  Orleans  v.  Jane,  34  La.  Ann.  667 233 

New  Orleans  v.  Macheca,  112  La.  559 194 

New   Orleans  v.   Smythe,   116   La.   685 77,  81,  83,  219,  271 

New  South  B.  &  Q.  Co.  v.  Commonwealth,  29  Ky.  Law  Eep.  873 376 

Newton  v.  Ogden,  126  Ky.  101 396 

Nevin  v.  Ladue,  3  Den.  437 18 

Nichols  v.  Lehman,   42  Ind.  App.  384 262 

Nichols  v.  State,  37  Tex.  Cr.  546 382 

Nicolini  v.  Langewvan   (Tex.  Civ.  1907),  104  S.  W.  501 298 

Nieland  v.  McGrath,  29  Misc.  R.   (N.  Y.)   6S2 319 

Niles  v.  Mathusa,  20  App.  Div.   (N.  Y.)   483 299 

Niles  v.  Mathusa,  19  Misc.  R.    (N.  Y.)   96 299 

Ninis    v.    Gilmore,    91    111.    468 686 

Nissen  v.  Farquhar,  121  La.  642 412 

Nogales  Club  v.   State,   69   Miss.   218 590 

Noran    v.    Daily,    97    Mich.    186 40S 

Noran  v.  Goodwin,  130  Mass.  138 494 

Norcker  v.  People,  ;»i   111.  468 686 

Nordin  v.  Kjos,  13  S.  D.  497 476 

Nordstrom's   Petition,    127   Pa.   St.   542 343 

Norfolk,  City  of,  v.  Board  of  Trade  &  B.  M.  Ass'n  (Va.  1909)  63  S.  E. 


TABLE    OF    CASES.  ]xxj 

[IONS 

987     129,  225,   235 

Norfolk  v.  Boad   of  Trade  &  Business  Men's  Ass'n.    (Va.    L909),   63 

S.   E.   987 225,  235 

Norman  v.  Thompson,  96  Tex.  250 391 

Norris  v.  City  Council  of  Rome,  10  Ga.  532 166 

Xorris  v.  Town  of  Oakman,   138  Ala.   411 145,  146 

North   v.   Barringer,    147   Ind.    224 240,  367 

Northern   Pac.   R.   Co.   v.   Whalen,   149   U.   S.    157 422,  615 

Northern  Pac.  R.  R.  Co.  v.  Whalen,  3  Wash.  Terr.  452 268 

North  Dakota  v.   Swan,   1   N.   D.  5 79 

Norton  v.  Alexander,  28  Tex.  Civ.  466 413 

Norton  v.  State,  37  Tex.  Cr.  181 404 

Norton  v.  State,  65  Miss.  297 375 

Xormoyle  v.  Latah  County,  5  Ida.  19 175 

Nowotny  v.   Blair,   32   Neb.   175 469 

Nurnberger  v.  Barnsville,  42  S.  C.  158 200 

Nutter  v.  Balthasser,  78  111.  302 459 

o 

O'Banion  v.  DeGarmo,   121  Iowa  139 361 

O'Brien  v.  Putney,  55  Iowa  292 444 

O'Brien  v.  State,  63  Ind.  242 651 

O'Brien  In  re  29   Mont.   530 75,  82,  368,  370,  371,  372,  378 

O'Brien  County  v.  Mahon,  126  Iowa  539 340,  344,  361,  363 

O'Connell  v.  O'Leary,  145  Mass.  311 421,  422,  451 

O'Connor  v.  Board  of  Commissioners,   (Ida.  1909.)   105  Pac.  560 381 

O'Connor  v.  Flennan   (Iowa  1909),  121  N.  W.  1088 254 

O'Flinn  v.  State,  66  Miss.  7 113,  349,  356 

O'Halloran  v.  Kingston,   16  111.  App.  659 435 

O'Halloran  v.  Mayor,  107  Mich.  13S 342 

O'Hara,  Matter  of,  63  App.  Div.  (N.  Y.)  512 391 

O'Hara,  Matter  of,  40  Misc.  R.   (N.  Y.)  355 415 

O'Leary   v.   Fusbey,   17   111.   App.   553 439 

Olmstead   v.    State,   92   Ala.    64 657 

O'Neal  v.  Miliar.  30  Ky.  Law  Rep.  888 37S,  382,  383 

O'Neal  v.  Parker,  83  Ark.  133 544 

O'Neal    v.    Vermont.    144   U.    S.    232 513 

O'Neil  v.  State,  llf,  Ga.   839 637 

O'Neal  v.   State,   76   Neb.   44 682 

Opinion  of  the  Justice,  68  Me.  5S7 403 

Orcutt  v.  Reingoudt,  40  X.  J.  L.  337,  351 244.  24^ 

Ormev.Coinnionweallli.-Jl    Ky.   Law   Re]).  1412 685 

Ornie   v.    Mayor  of  Tuscumbria,    150   Ala.   520 164 

O'Rourke  v.  Piatt,  67  Hun  (N.  Y.)  71 441 

Osborne  v.   State,  77  Ark.  439 545,  548 

Osburn  v.  Mariette,  118  Ga.  53 Mo 

Osgood  v.   People,  39  N.  Y.   449 643 

Ouachuta  Countv  v.  Rolland,  60  Ark.  516 241 


lxxii 


TABLE    OF    CASES. 


SECTIONS 

Our  House  Xo.  2  v.  State,  4  G.  Green  172 658,  662 

Overseers  of  Poor  v.  Warner,  3  Hill  (N.  Y.)  150 234 

Oviatt   v.    Pond,    29    Conn.    479 499 

Oxford  v.  Frank  County  Judge,  30  Tex.  Civ.  App.  343 389 

Oxley  v.  Allen  (Tex.  Cri.  App.  1908),  107  S.  W.  945 379,  413 


Tabst  Brewing-  Co.  v.  Crenshaw,  198  U.  S.  17 54 

Pace   v.   Raleigh,    140   N.    C.    65 383,  386 

Packett  v.  State,  33  Fla.  385 271 

Padgett  v.   Sturgis    (Ga.   App.   1909),   65    S.   E.    352 522,  533 

Peer's  Case,  5  Gratt.  674 667 

Page  v.  State,  11  Ala.  849 234 

Page  v.  Page,  43  Wash.  293 447 

Parkinson  v.   State,   14  Md.   184 652 

Pallard  v.  Allen,  96  Me.  455 124 

Palmer  v.  State,  2  Oreg.  66 151 

Papworth   v.   Fitzgerald,   106   Ga.    378 140 

Pardue  v.  Ellis,   18  Ga.  586 204 

Paris  v.  Graham,  33   Mo.  94 217 

Parish  v.  Campbell,  106  La.  464 376 

Parker   v.   Portland,    54   Mich.   308 343 

Parker   v.    State,    27   Ind.    393 118 

Parker  v.  State,  31  Ind.  App.  650 40 

Parker  v.   State,   4  Ohio   St.    563 688 

Parish  of  East  Feliciana  v.  Gurth,  26  La.  Ann.  140 176 

Parker  v.  Commissioners,  104  N.  C.  166 173 

Parker  v.  Griffith,  (N.  C.  1909)  66  S.  E.  565 271 

Parsons   v.   People,   32   Colo.   221 218 

Patterson  v.   Nicol,  115  Iowa  283 629 

Patterson  v.  Mead,  148  Mich.  659,  666 383 

Patterson,  Matter  of,  43  Misc.  R.   (N.  Y.)   498 256 

Paul  v.  Gloucester  County,  50  N.  J.  L.  585 81,  121,  370,  371.  392,   395 

Paul  v.  State  (Tex.  Civ.  1907),  106  S.  W.  448 65,  71,  279 

Paul  v.  Washington,  134  N.  C.  363 159,  166,  304 

Paulk  v.  Sycamore,  104  Ga.  728 140 

Paulsen   v.   Langness,    16   S.   D.   471 421,  422 

Parrent  v.  Little,  72  N.  H.  566 330 

Patton   v.   State,   80  Ga.   714 667 

Payton  v.  Hot  Spring  Co.,  53  Ark.  236 199 

Pantz  v.  Barnes,  40  Ohio  St.  43 439 

Parson  v.  State,  61  Neb.  244 672 

Paquet  v.  Emery,  87  Me.  215 , 539 

Peacock  v.  Limburger  (Tex.  Civ.  App.  1902),  67  S.  W.  518 112 

Peacock  v.   Oaks,   85   Mich.   579 427 

Pearce  v.    State,   35   Tex.    Cr.    150 231 

Pearson  v.  District  Court  of  Cass  County,  90  Iowa  756 634 

Peary  v.   Goss,   90  Tex.    89 423 


TABLE    OF    CASES.  lxxjj 

SEC  1 

Peck,   Matter   of,   167   N.   Y.   391 317 

Peer  v.  Excise  Commissioners,  70  N.  J.  L.  400 194 

Pierson  v.  State,  39  Ark.  219 84 

Pehrson  v.   Ephraim,   14   Utah    147 303 

Peity   v.    State,    38    Wis.    53S 178 

Pelley  v.  Wills,  141  Ind.  688 240,  290 

People  v.  Ackerman,  80  Mich.  588 117 

People  v.  Adair,  44  Misc.  R.   (N.  Y.)   444 405 

People  v.  Adams,  95  Mich.  241 30,  419 

People  v.  Adams,  17  Wend.  (N.  Y.)  475 643,  606 

People  v.  Adelphi  Club,  149  N.  Y.  5 595 

People  v.  Albany,  County  Excise  Comm'ers,  3  Park  Cr.  (X.  Y.)   501..   278 

People  v.   Aldrich,   104   Mich.   455 655,  665 

People  v.   Andrews,   50   Hun   591 595 

People  v.  Andrews,  115  N.  Y.  427 595 

People  v.  Bashf ord,  128  App.  Div.  (N.  Y.)  351 297 

People  v.  Bates,  61  N.   Y.  App.   Div.   559 637 

People  v.  Blom,   120  Mich.   45 156,  219 

People  v.  Board  of  Excise,  13  Misc.  P.  (X.  Y.)  537 397 

People  v.  Board  of  Excise,  91  Hun  (N.  Y.)  94 247,  276 

People  v.  Board  of  Excise,  91  Hun.  269 247,  269 

People   v.   Bowkus,    109   Mich.   360 679 

People  v.  Bradley,  33  N.  Y.  St.  R.  562 595 

People  v.  Braisted,  13  Colo.  App.  532 572 

People    v.    Brown,    85    Mich.    119 105 

People  v.   Brush,  179   N.   Y.   93 257 

People  v.  Brush,  41  Misc.  R.   (N.  Y.)   56 375 

People  v.  Buffurn,  27  Hun  (N.  Y.)  216 291 

People  v  Carrel,  118  Mich.  79 Ill 

People  v.  Town  Canvassers,  32  Misc.  R.   (X.Y.)    123 3*1-414 

People  v.  Case,  153  Mich.  98 162 

People  v.  Chandler,  41  App.  Div.   (N.  Y. )   178   415 

People  v.  Chicago  Teleph.  Co.,  220  111.  238 267 

People   v   Chipman,    31    Colo.    90 572 

People  v.  Clark,  01  App.  Div.  (X.  Y.)  500 678 

People   v.    Clement,    128    App.    Div.    (X.    Y.)    539 332,  333,  336 

People  v.  Clement,   134  App.  Div.    (X.   Y.)   402 332.  335,  337 

People  v.  Clement,  116  X.   Y.  Supp.  1098 ' 

People  v.  Collins,   3   Mich.   343 79,  371 

People  v.  Commissioners,  7  Abb.  Pr.   f X.  Y.)   34 27° 

People  v.  Commissioners.  25  X.  Y.  Sii|  p.  873 20* 

People  v.  Commissioners.  1:.'  Misc.  11.  (  X.  Y.)  290 

People  v.  Commissioners  of  Police,  59  X.  Y.  92 

People  v.  Covey  (X.  Y.  App.  Div.  1909),  118  N.  YT.  Supp.  23 

People  v.  Cregier,   138  111.   401 142.  221 

People  v.  Crilley.  20  Barb.  (X.  Y.)  246 18-35 

People  v.  Cullinan,  95   App.   Div.    (X.   Y.)    508 303, 

People  v.   Cullinan.    168    X.    Y.   258 3:'/.'. 

People  v.  Dalton,  7  Misc.  R.  558 274 


]xx}v  TABLE    OF    CASES. 

SECTIONS 

People  v.  Dalton,  9  Misc.  R.  (N.  Y.)  249 259 

People  v.  Davis,  36  X  Y.  77 245 

People  v.  Davis,  45  Barb  (X.  Y.)  494 277,  293 

People  v.  Decker,  2S  Mis.  R.   (X.  Y.)  699 416 

People  v.  Dieterich,  142  Mich.  527 677 

People  v.  Durrante,   19   App.   Div.    (X.   Y.)    292 299 

People   v.   Eckman,    63   Hun    (X.   Y.)    209 352,367 

People  v.  Edwards,  42  Misc.  R.   (X.  Y.)   567 388 

People  v.   Flynn,   48  Misc.   R.    (X.  Y.)    159 188,  316 

People  v.  Foster,  64  Mich.   715 29 

People  v.  Foster,  27  Misc.  R.   (X.  Y.)   576 403 

People   v.   Gallagher,   4   Mich.   244 83 

People  v.  Gregg1,  13  N.  Y.  Supp.  114 240 

People  v.  Gregg,  59  Hun  (N.  Y.)  107 638 

People  v.  Greiser,  67  Mich.  490 178 

People  v.  Griesbach,   211   111.   35 248 

People  v.  Groat,  22  Hun  (X.  Y.)  164 364,  367 

People  v.  Hamilton,  25  App.  Div.   (N.  Y.)   428 257 

People  v.  Hamilton,  27  Misc.  R.  (N.  Y.)  360 403 

People  v.  Hamilton,  27  Misc.  R.  (N.  Y.)  576 403 

People  v.  Hamilton,   17  Misc.   R.    (X.   Y.)    11 595 

People  v.  Hannon,  13  X.  Y.  Supp.  117 240 

People  v.  Harrison,  191  111.  257 158 

People  v.  Hart,    1    Mich.    467 562 

People  v.  Hartstein,  49  Misc.  R.   (N.  Y.)   336 113 

People  v.  Hartman,  10  Hun   (X.  Y.)  602 234 

People  v.  Hasbrouck,  21  Misc.  R.   (X.  Y.)   188 399 

People  v.  Haughton,  41   Hun    (X.   Y.)    558 322 

People  v.  Hawley,  3  Mich.  330 18,  20,  86,     87 

People  v.  Heidelberg  Garden  Co.,  233  111.  290 235,  267 

People  v.  Henschel,  12  N.  Y.  Supp.  46 674 

People  v.  Henwood,  123  Mich.  317 127,  374 

People  v.  Hicks,   79  Mich.   457 671 

People  v.  Hill,   163   111.   186 472 

People  v.   Hilliard,  28   App.  Div.   141 270 

People  v.  Hilliard,  81  App.  Div.   (N.  Y.)   71 246 

People  v.  Hilliard,  85  App.  Div.   (X.  Y.)   507 175 

People    v.    Jones,    54    Barb.    (X.    Y.)    311 274,  287 

People  v.  Kastner,  101   App.  Div.  265 674 

People  v.  Keefer,  97  Mich.   15 665 

People  v.  Kennedy,  105  Mich.  75 109 

People  v.  Kilborn,  35  Misc.  R.  (X.  Y.)  598 258 

People  v.  Kinney,  124  Mich.  486 30 

People   v.   Krauk,   46  Hun   632 677 

People  v.  Lammerts,  18  Misc.  R.  (X.  Y.)   343 194 

People  v.  Lavin,  4  X.  Y.  Cr.  C.  547 678 

People  v.  Law  and  Order  Club,  203  111.  127 579 

People  v.  Longwell,  136  Mich.  302 124 

People  v.  Luhrs,  7  Misc.  R.  (X.  Y.)  503 595 


TABLE    OF    I  ASES.  ]xxv 

SECTION'S 

People  v.  Lyman,  25  Misc.  R.  (X.  Y.)  217 :;:;  I 

People  v.  Lyman,  :;:;  Misc.  R.  (  X.  Y.)  243 313 

People  v.  Lyman,  ".:;  App.  Div.  (X.  Y.)  470 

People  v.  Lyman,  G7  App.  Div.  (X.  V.)  446 :;:;;. 

People  v.  Lyman,  69  App.  Div.  (  X.  Y.)  406 314, 

People  v.  Lyman,  1  :>('>   X.  Y.  407 314,  336,  358 

People  v.  Masso,  :i(i  Misc.  R.  ( N.  Y.)  164 391,  414 

People  v.  Mauzer,  is  .Misc.  R.  (X.  Y.)  292 299 

People  \.  Maxwell,  83  Hun   (X.  Y.)   157 

People  v.  McBride,  234  111.  146 186,  187,  192, 

People  v.   McCall,  94  X.  Y.  587,  590 426 

People  v.  McDowell,  70  Hun    (X.  Y.)    1 28] 

People  v.  McGowan,  44  App.  Div.   (XT.  Y.)   30 319 

People  v.  Meyers,  95  X.  Y.  223 194,  337 

People  v.  Mills,  91  Hun   (X.  Y.)   144 •.  . .   274 

People  v.   Moore,   155   Mich.    107 680 

People  v.  Mount,  186  111.  560,  571 204,  210,  213 

People  v.  Murray,  2  App.  Div.  607 268 

People  v.  Murray,  5  App.  Div.  (N.  Y.)  441 194,  25-. 

People  v.  Murray,  16  Misc.  R.   (N..  Y.)  398 258 

People  v.  Murray,  148  X.  Y.  171 259 

People  v.  Murray,    149  N.  Y.  367 175.   1 89 

People  v.   New-man,   85   Mich.   98 :;77 

People  v.  Newman,  99  Mich.   148 178 

People  v.  Norton,  7  Barb.  477 271,  287 

People  v.  Norton,  76  Hun  (N.  Y.)  7 638 

People  v.  Olmsted,  74  Hun  (N.  Y.)  323 637,  656 

People  v.  Pag-e,  3  Park.  Cr.  600 

People  v.  Paquin,   74  Mich.   34 662,  670 

People  v.  Pettit,  128  App.  Div.  (N.  Y.)  870 246 

People  v.  Polhamus,   S  App.   Div.    (N.  Y.)    133 643,  653,   657,   658 

People  v.  Pierson,  35  Misc.  R.  (N.  Y.)  406 394,  403 

People  v.  Possing,  137  Mich.  353 

People  v.  Pullman  Car  Co.,  175  111.  126 

People  v.  Quant,  2  Park.  Cr.  410 83 

People  v.  Quant,  12  How.  Pr.   (X.  Y.)   83,  89 87,  l'H 

People  v.  Raims,  20  Colo.  489 186,  204,  21^. 

People  v.    Remus,   135  Mich.  629 127,  683 

People  v.   Ringsted,  90  Mich.  371 653 

People  v.  Ryan,  so  App.  Div.  (X.  Y.)  524 679 

People  v.  Sackett,  15  App.  Div.  (X.  Y.)  290 200,  275,  395 

People  v.   Sackett.  17  Misc.  R.  (N.  Y.)  405 241 

People  v.  Schmitz,  7  Cal.  App.  330 234 

People  v.  Sinell,  34  X.  Y.  St.  R.  S9S 595 

People  v.  Smith,   69    X.    Y.    175 

People  v.  Soule,  74  Mich.  250 .-,-~ 

People  v.  Stocking,  50  Dark.   (X.  Y~.)   573 656 

People  v.  Sykes,  96  Mich.  452 292 

People  v.  Telford,  56  Mich.  541 662,  664 


lxxvi  TABLE    OF    CASES. 

SECTIONS 

People  v.  Thornton,  Town  of,  186  111.  162 225 

People  v.  Tounsey,   5  Den.    (X.  Y.)    70 193,  648 

People  v.  Town  Clerk,  26  Misc.  E.  (N.  Y.)  220 416 

People  v.  Tupton,  52  Misc.  K.  (N.  Y.)  336 664 

People  v.  Utley,  129  Mich.  628 339 

People  v.  Wade,  101  Mich.  89 375 

People  v.  Walker,  60  Misc.  E.  (X.  Y.)  130 270 

People   v.   Wanek,   241   111.   529 383 

People  v.  Warden,  6  App.  Div.  (N.  Y.)  520 81,  105,  192 

People  v.  Wells,  11  Misc.  E.  (N.  Y.)  239 299 

People  v.  Wheelock,  3  Park.  Cr.  (N.  Y.)  9,  15 19,  22 

People  v.  White,  127  Mich.  428 Ill 

People  v.  Whitney,   105  Mich.   622 419 

People  v.  Williams,  162  N.  Y.  240 182 

People  v.  Woodman,  15  Daly  (X.  Y.)  136 310 

People  v.  Worsley,  1  N.  Y.  Supp.  478 287 

People  v.  Wright,  3  Him  (X.  Y.)  306 321 

People  v.  Village  of  Crotty,  93  111.  180 213 

People  v.  Vosbnrgh,  76  Hun.  (N.  Y.)  562 72,   121 

People  v.  Zeiger,  6  Park.  Cr.  E.  (X.  Y.)  355 25 

Perdue  v.  Ellis,  18  Ga.  586 134 

Pegram  v.  Stortz,  31  W.  Va.  220 445,  467,  469,  477 

Perkins  v.  Girds,  29  Vt.   343 516,  541 

Perkins  v.  Henderson,  68  Miss.  631 263 

Perkins  v.  Ledbetter,  68  Miss.  327 268 

Perkins  v.  Loux,  14  Idaho,  607 219 

Perkin  v.   Smelzel,   21   111.   464 137,  172 

Perkins  v.  State,  92  Ala.  66 688 

Perkins,  Ex  parte,  34  Tex.  Cr.  429 382,  405 

Perry  v.  Chadwick,  7  Utah,  143 269 

Peterson  v.  Brockey,  (Iowa,  1909)   119  N.  W.  967 462,  465,  467 

Peterson  v.  Knoble,  35  Wis.  80,  81 463 

Peterson  v.  State,  64  Neb.  875 653,  655,  662 

Peterson  v.  State,  63  Neb.  251 21,     34 

Petteway  v.  State,  36  Tex.  (V.  E.  97 27,  680 

Petitfils  &  Pro.  v.  Town  of  Jeanerette,  52  La.  Am.  1005 217 

Pettit  v.  People,  24  Colo.  517 151 

Phelps,   In  re  (Neb.  1908),   110  X.  W.  681 227,  265 

Phillips    v.    Gilford,    104    Iowa    458 60S 

Phillips  v.  Goe,   85   Ark.  304 368 

Phillips,  In  re   (Neb.  1908),  118  \V.  W.   1098 284 

Phillips  v.  State.  2  Yerg.   (Term.)  48S 68,   1:21 

Phillips   v.   Mobile,  208  U.  S.  472 83,  195,  211,  214 

Phillips  v.  Tecumseh,  City  of,  5  Neb.  312 208 

Phillips  v.  Stat.%  23  Tex.  App.  304 409 

Phoenix  Brewing  Co.  v.  Eumbarger,  181  Pa.  St.  251 340 

Pic-kens  v.  State,  20  Ind.  116 291 

Pierce  v.  Commonwealth,  10  Bush.  (K.v.)  6 274 

Pierce  v.  County  of  Hillsborough,  57  X.  H.  324 561 


TABLE    OF    CASES.  lxxvii 

!  CONS 

Pierce  v.  State,  13  N.  H.  536 190 

Pike  County  Dispensary  v.   Mayor  and   ( Ouncilmen  of  Brundige,    i::o 

Ala.    193..  615 

Pike    v.    Slate,   40   Tex.    Cr.    App.    613 Oil 

Pioneer  Trust  Co.  v.  Stich,  71  Ohio  St.  459 180 

Piqua,  City  of,  v.  Zimmerlin,  35  Ohio  St.  507 164 

Piqua  v  Zimmerman,  35  <  >  1 1  i  o  St.  507 164 

Pisar  v.  State,  56  Neb.  455 251 

Pitner  v.  State,  37  Tex.  Cr.  268 381 

Pitts  v.  State,   124  Ga.   79 677 

Plainfield   V.  Watson,  57  N.  J.  L.  525 686 

Plass,  Matter  of,  71  App.  Div.  (N.  Y.)  488 Ill,  317, 

Pleuler    v.    State,    11    Neb.    547 100,189,192 

Plucknett  v.  Tippey,  45  Neb.  342 349 

Plumb  v.  Christie,  103  Ga.  686 91,  93,  226 

Plnmmer  v.  Commonwealth,  1  Bush.  (Ky.)  26 322 

Police  Jury  v.  Harper,  42  La.  Ann.   776 138 

Police  Jury  v.  Mausina,  119  La.  300 378 

Police  Jury  v.  Mayor,  105  La.  512 402 

Police  Jury  v.  Ponchatoula,   118  La.  138 397 

Police  Jury  v.  Town,  49  La.  Ann.  796 378 

Pollard  v.  Allen,  96  Me.  455 126 

Pollard,  Ex  Parte  (Tex.  Cr.  1907)   103  S.  W.  878 379,  386 

Pollard,  Ex  parte,  51  Tex.  Cr.  488 379 

Polmer's  License,  3  .Pa.   Co.  Ct.   R.  314 364 

Pomroy  v  Sperry,  16  How.  Prac.  ( X.  Y.)  211 559 

Pontius  v.  Bowman  Pros.  66  Iowa  88 612 

Pope  v.  People,  26  111.  App.  44 666 

Porter  v.  Butterfield,  116  Iowa,  725 380 

Portland,  City  of,  v.  Schmidt,  13  Oreg.  17 136,  138,  154,  206,  216,  219 

Portwood  v.  Basket  t,  CI   Miss.  213 173 

Post  v.  Township  Board,  64  Mich.  597 

Potter  v  Deyo,  19  Wend.  ( X.  Y.)  361 

Pottinger  v.  State,  54  Kan.  312 

Pounders   v.    State,    37    Ark.    339 

Powell  v.  Egan,  42  Neb.  482 

Powell  v.  State,  69    \!a.  10 186, 

Powell  v.  Tuttle,  3  X.  Y.  396 I     I 

Powell,  In  re,  (Neb.  1908)  119  X.  W.  9 24'.'. 

Powers.    Matter   of,    34    Misc.    R.    (X.    Y.)    636 

Powers  v.   Mayor  and   Council  of   Deeat  ur,  54  Ala.  214 

Powers  v.  Winters,  106  Iowa,  751 

Poynor  v.  Holzgrap,  35  Tex  Cv.  App.  233 

Prather  v.  People,  85  III.  36 230,  342 

Piedmont  Club  v.  Commonwealth,  ^r  Va.  540 602 

President  &  Trustees  of  Jacksonville  v.  Holland.  19  111.  271 

President  of  Yillage  of  Platteville  v.  Mek'ernan.  54  Wis.  4*7 150 

Prestwood  v.  Borland,  92    Ma.  599 402 

Prestwood  v.  State,  SS  Ala.  235 379 


lxxviii  TABLE    OF    CASES. 

SECTIONS 

Price  v.  Liquor  License  Commissioners,  98  Md.  346 368,  375 

Price  v.  Wakeham  (Tex.  Cr.  App.  1908)  107  S.  W.  132 451 

Princeton,  Town  of,  v.  Vierling,  40  Ind.  340 199 

Princeville  v.  Hitchcock,  101  111.  App.  588 570 

Prinzel  v.  State,  35  Tex.  Cr.  274 202 

Prohibitory  Amendment   Cases,   24  Kan.   700 83,  186 

Providence  v.  Bligh,  10  K.  I.  208 349 

Providence,  Town  of,  v.  Shackelford,  106  Ky.  378 199 

Prospect  Brewing  Co's  Petition,  127  Pa.  St.  523 271 

Provo  City  v.  Shurtliff,  4  Utah  15 138 

Prussier  v.  Guenther,  16  Abb.  N.  C.  (N.  Y.)  230 6 

Puckett  v.  Snider,  110  Ky.  261 382,  411 

Puckett  v.  Snider,  22  Ky.  Law,  1718 397 

Puckett  v.  State,  71  Miss.  192 418 

Publishing  Co.  v.  Jersey  City,  54  N.  J.  L.  437 252 

Pumphrey  v.  Anderson  (Iowa  1909)  119  N.  W.  617 116 

Purdy  v.  Smiton,  56  Cal.  133 254 

Purdy,  Matter  of,  40  App.  Div.  (N.  Y.)  133 258,  311,  316 

Putney  v.  O'Brien,  53  Iowa  117 440 

Q 

Quain  v.  Russell,  8  Hun   (N.  Y.)   319 457,  487 

Quatler  v.   State,  120  Ind.  92 117 

Quinlen  v.  Welch,  69  Hun    (N.  Y.)    584 493 

Quinlan  v.  Welch,  141  N.  Y.  15S 421,  426 

Ouinnipica  Brew.  Co.  v.  Hackbarth,   74  Conn.  392 1S4,  301 

Quintard   v.    Corcoran,    50   Conn.    34 349 

Ouintard  v.  Knoedler,  53  Conn.  485 350 

Quinton's  License,  169  Pa.  St.  115 276 

Quirk,  Kelley,  Bunchell,  Kearney,  Gearhart  &  Boyton  Licenses,  17  Pa. 

Sup.    Ct.    327 300 

Quist  v.  American  Bonding  &  T.  Co.,  74  Neb.  692 317 

R 

Rabe  v.  State,  39  Ark.  204 27 

Radford   v.   Thornell,   81   Iowa   709 620 

Radley  v.  Seider,  99  Mich.  431 453,  461,  463 

Rafferty    v.    Buckman,    46    Iowa    195 486,  4S7,  488 

Ragau   v.  State,  67  Miss.  332 654 

Ragle    v.    Mattox,    159    Ind.    584 262,263 

Rahn  Township  Licenses,  13  Pa.  Dist.  Rep.  547 247 

Rahrer,  In  re,  140  U.  S.  545,  555 44.  54 

R.iisler  v.  State,  55  Ala.  64 646 

Ramagnano  v.   Crook,   85  Ala.   226 271 

Rancour's   Petition,    66    N.    H.    172 625 

Randall  Ex  parte,  50  Tex.  Cr.  519 396 


TABLE    OF    CASES.  \xx\x 

SECTIONS 

Randenbusch's  Petition,  120  Pa.  St.  328 268 

Rasquin,  Matter  of,  37  Misc.  R.   (N.  Y.)  693 311 

Rathburn  v.  State,  88  Tex.  281 173,  375 

Rattensbury  v.  Village  of  Northville,  122  Mich.  158 15 

Rau   v.   People,  63  N.  Y.  277 ).   :,.     25 

Raubold  v.  Commonwealth,  23  K'.y.  L.  Rep.  735 646,  647 

Raubold  v.  Commonwealth,  21    Ky.    Law    Rep.    1125 100,  225 

Rauch  v.  Commonwealth,  78  Pa.  St.  400 376 

Rawkins  v.  Vidvard,   34  Hun   (N.   Y.)   205 443,  465 

Rawson  v.   State,   19  Conn.   292 662 

Raymond  v.  Clement,  lis  App.   Div.  (N.  Y.)  528 41 :: 

Read  v.  Board  of  Excise  Comm're   (N.  J.  1908),  71    Atl.   120 248 

Reath   v.   State,    16   Ind.    App.    146 43G,  44r< 

Record  v.  Messenger,  8  Hun   (N.   Y.)   283 559 

Redden   v.   Town   of   Covington,   29   Ind.    US 281 

Redding  v.  State,  91  Ga.  231 643 

Reed    v.   Collins,    5   Cal.    App.    494 77,  81,     83 

Reed   v.  Territory,   1   Okla.   Cr.   4S1 686 

Redpath    v.    Nottingham,    5    Blackf    (Ind.)    267 364,  365 

Reese  v.  City  of  Atlanta,  63  Ga.  334 229,  302 

Reese  v.  City  of   Newman,   120  Ga.   198 140 

Reid  v.  Adams,  2  Allen   (Mass.)   413 540 

Reg-adanz  v.  State  (Ind.  S.  C.  1908),  86  N.  E.  449 547 

Reget   v.   Bell,    77   111.    593 485 

Reid  v.  Adams,  2  Allen   (Mass.)   413 540 

Reid  v.  Terwilliger,  116  N.  Y.  530 443 

Reily  v.  Otto,  108  Mich.  330 623 

Reinhardt  v.  Fritzsche,  69  Hun    (N.   Y.)    565 421,  426,  445 

Reisch  v.  People,  229  111.  574 489 

Reithmiller  v.  People,  44  Mich.  280 117,  192 

Rejon,  Matter  of,  85  App.  Div.   (N.  Y.)   621 234 

Reuter  v.  State,  43  Tex.  Cr.  572 660 

Revenue  Agent  v.  Cox,  80  Miss.  561 362 

Reyfelt  v.  State,  73  Miss.  415 36 

Reyman  Brewing  Co.  v.  Brister,  179  U.  S.  445 179 

Reyman   Brew.  Co.  v.  Bustor,  92  Fed.  2S 228 

Reynolds   v.   Commonwealth,   106   Ey.   37 381 

Rhode  Island.  Perkins  II.  S.  Co.  v.  Board  of  License  Commissioners, 

19    R.    I.    643 260 

Rhodes  v.  Iowa,  State  of,  170  U.  R.  412 54.  57,  514 

Bice  v.  Commonwealth,  22  Ky.  Law   Rep.  1793 72 

Rice.   Matter  of,   95  App.  Div.    |\.   V.)    2S 3S2.  384 

Richards  v.  Columbia,  55  N.   II.  !><; 97 

Richards  v.  Moore.  62  Vt.  217 461 

Richland  County  v.  Richland  Center.  59  Wis.  591 181,  204 

Richmond   v.   Shickler.   57    Iowa   4S6 439 

Rickart    v.    People.    79    111.    85 579 

Bicker,   Petitioner.   32   Me.   37 558,  561 

Ricks  v.   State.    16  Ga.  600 643 


lxxx 


TABLE    OF    CASES. 


SECTIONS 

Riden   v.   Grimm  Bros.,   97   Tenn.   220 445 

Kiilling  v.   State,   59  Ga.  601 685 

Riggs  v.   State    (Neb.   1909),   121  N.  W.  588 552 

Riley  v.  Rowe,  112  Ky.  817 268,  272 

Riley  v.  State,  43  Miss.   397 643 

Riley  v.  Trenton,  51  N.  J.  L.  498 134 

Ring  v.  Nichols,  91  Me.  478 524,  543,  544 

Ringler  v.  Lilly,  26  Ohio  St.  48 439 

Ripley  v.  MeCann,  34  Hun  (N.  Y.)  112 563,  567 

Ristine   v.   Clements,   31   Ind.   App.   338 196,  197 

Ritchie  v.  Zalesky,  98  Iowa  589 106,  109 

Ritchie,  Matter  of,  18  Misc.  R.   (N.  Y.)   341 257 

Rizer  v.  Tapper,  133   Iowa  628 628 

Roach  v.  Kelly,  194  Pa.  St.  24 429 

Roberge  v.  Burnham,  124  Mass.  277 459,  556 

Roberson  v.  State,  100  Ala.  123 3 

Roberts  v.  O'Conner,  33  Me.  496 571 

Roberts  v.   State,  26  Fla.   360 230,  662 

Roberts  v.  State,  4  Ga.  App.  207,  217 3,  37,     83 

Roberts  v.   Taylor,   19  Neb.   184 457 

Robinson  v.  Americus,  121  Ga.  180 140 

Robinson  v.  Haug,  71  Mich.  38 76,  81,  83,  109 

Robinson  v.  Miner  (People  v.  Haug),  68  Mich.  549 343,  504 

Robinson  v.  Randall,  82  111.  521 459 

Robinson   v.    State,    38   Ark.    548 659 

Rochester  v.  Upman,  19  Minn.  108 204 

Rock  County  v.  City  of  Edgerton,  90  Wis.  288 181 

Roesch  v.  Henry  (Oreg.  1909),  103  Pac.  439 383,  391,  392 

Rogers  v.  Hahn,  63  Miss.   578 248 

Rogers  v.  Hughes,  87  Ky.  185 427 

Rogers  v.  State,  58  N.  J.  L.  220 653 

Rogers,  Matter  of,  41  Misc.  R.  (N.  Y.)  389 382 

Rohn's  License,  14  Pa.  Co.  Ct.  R.  202 300 

Rohnbacker  v.  City  of  Jackson,  51  Miss.  735 81,  83,  248 

Rooney  v.  City  Council  of  Augusta,  117  Ga.  709 134,  140 

Roose  v.  Perkins,  9  Neb.  304 425,  439,  465,  473,  478,  481,  487 

Roper  v.  Scurlock,  29  Tex.  Civ.  App.  464 383,  401,  405,  493 

Rose  v.   Lampley,   146  Ala.  445 94 

Rose  v.  State,  4  Ga.  App.  588 59,     81 

Rose  v.  State  (Ind.  S.  C.  1909),  87  N.  E.  103 45,  519,  527,  546 

Rosecrants  v.  Shoemaker,  60  Mich.  4   467,  480,  492 

Rosenberg  v.  Rohrer  (Neb.  1909),  120  N.  W.  159 213,  266,  286 

Rosenbaum  v.  Commonwealth,  7  Ky.  Law  Rep.  590 124 

Rosenham  v.  Commonwealth,  8  Ky.  Law  Rep.  519 229 

Rosewater  v.  Pinzenscham,  38  Neb.  825 252,  265 

Rossell  v.  Garon,  50  N.  J.  L.  358 138 

Roswell  v.  State,  70  Miss.  395 376 

Roth  v.  Eppy,  80  111.  283 425,  426,  435,  481,  485 

Rothwell  In  re,  44  Mo.  App.  215 419 


TABLE    OF    CASKS.  )xxxj 

SECTIONS 

Rouse  v.  Welsheimer,    82   Mich.    172 453,   481,  490 

Rowe  v.  Edmonds,  3  Allen   (Mass.)   334 07 

Rowland   v.  City  of  Greencastle,   L57   [nd.  591 156, 

Rowland  v.  State,  21  Tex.   App.  418 187 

Rowley,  Matter  of,  34  Misc.  R.  (N.  Y.)  662 391 

Rubenstein  v.  Kahn,  5  Misc.  R.  (N.  Y.)  408 299 

Rude  v.  Fakes,  153  111.  App.  456 465,  466 

Ruge  v.  State,  62   End.  388 .  117 

Ruhland  v.  Waterman  (R.  I.  1908),  71  Atl.  450 372 

Ruitleman  v.  Halm,  20  Tex.  Civ.  App.  224 446 

Ruland,  Matter  of,  21  Misc.  R.  (N.  Y.)  504 256,  258 

Rumyon  v.  State,  52  Ind.  320 291 

Russell  v.  Anderson  (Iowa  1909),  120  N.  W.  89 632 

Russell   v.    Sloan,   33   Vt.    656 38,39,     40 

Russell  v.  Tippin,  12  Ohio  C.  C.  52 427 

Russel  v.  State,  77  Ala  89 247,  270 

Russellville,  Ex  parte,  95  Ala.  19 134,  136 

Ruth  In  re,  32  Iowa  250 194 

Rutherford's  License,  2  Pa.  Co.  Ct.  Rep.  78 284 

Rutledge  v.  Board  of  Supervisors,  (Mich.  1910)  124  N.  W.  945 383 

Ryall  v.  State,  78  Ala.  410 27 

Ryan  In  re  (Neb.  1907),  112  N.  W.  598 213 

Ryon,  Matter  of,  85  App.  Div.  (N.  Y.)  621 242,  311 

Ryon,  Matter  of,  39  Misc.  R.  (N.  Y.)   698 316 


s 

Sackett   v.    Ruder,    152    Mass.    397 421,  445 

Sacramento  v.  Dillman,  102  Cal.  107 198,  204 

Saffroi  v.   Coburn,   32   Tex.   Civ.   App.   75 361 

Salt  Lake  City  v.  Wagner,  2  Utah  400 215 

Sanderlin  v.  State,  2  Humph.    (Tenn.)   315 121 

Sanders  v.  State,  2  Iowa  230 517,  547 

Sanders  v.  State,  34  Neb.  872 112,  117,  US,  151 

Sanders  v.  Town  Commissioners,  30  Ga.  679 212 

Sanders  v.  Town  Council  of  Elberton,  50  Ga.  178 219 

Sanderson  v.   Goodrick,   46   Barb.    (N.   Y.)    616 298 

Sanford  v.  Bennett,  24  N.  Y.  20 426 

Sandige  v.  Widman,  12  S.  D.  101 447 

Sandoval  v.  Meyers,  8  N.  M.  636 196 

Sandys    v.    Williams,    46    Oreg.    327 123 

San  Luis  Obispo  Co.  v.  Greenberg,  120  Cal.  300 206 

Santa  Cruz  v.  Santa  Cruz,  R.  R.  Co.,  56  Cal.   143 198 

Santo  v.  State,  2  Iowa  165 83,  368,  371,  498,  537.  549 

Santo  v.  State,  4  Iowa  349 C46 

Sansom  v.  Greenough,  55  Iowa  127 471 

Santer  v.  Anderson,  112  HI.  App.  580 432 

Sargent  v.  Little,  72  N.  H.  555 287 


Ixxxii  TABLE    OF    CASES. 

SECTIONS 

Sarlls  v.  United  States,  152  U.  S.  570,  572 7,  11,  12,     24 

Sarris  v.  Commonwealth,  83  Ky.  327 371,  3S6 

Sasser   v.   Adkins,    108   Ga.   228 198 

Sasser  v.   Martin,   101   Ga.  447 194 

Savage  V.  Commonwealth,  84  Va.  582 657,  676 

Savage   v.   Commonwealth,   84   Va.   619 83,  368,  371 

Savage   v.   Muphries    (Tex.   Civ.   App.   1909),    118   S.   W 399,  400,  402 

Savage  v.  Wolfe,  69  Ala.  569 396 

Savier   v.   Chipman,    1   Mich.    116 234 

Sawicki  v.  Keron,  (N.  J.  S.  C.  1910)  75  Atl.  477 313 

Sawyer  v.  Botti,   (Iowa  1910)   124  N.  W.  787 629 

Sawyer  Medicine  Co.  v.  Johnson,  178  Mass.  374 511 

Saylor  v.  Duel,  236  111.  429 412 

Scahill  v.  Aetna  Indemnity  Co.   (Mich  1909),  122  N.  W.  78..   340,  452,  456 

Schafer  v.  Boyce,  41  Mich.  256 457 

Schafer  v.  Smith,  63  Ind.  226 465 

Schafer  v.  State,  49  Ind.  460 457 

Schiek  v.  Sanders,  53  Neb.  664 487 

Schilling  Ex  parte,  38  Tex.  Cr.  287 397,  404 

Schlachter  v.  Stokes,  63  N.  J.  L.  138 212 

Schlandecka  v.  Marshall,  72  Pa.  St.  200 269 

Schlasser  v.  Mould  (Iowa  1909),  121  N.  W.  530 634 

Schlicht  v.  State,  56  Ind.  173 34 

Schlosser   v.    State,    55    Ind.    82 434 

Schmeltz  v.  State,  8  Ohio  C.  C.  82 108 

Schmerman  v.  Town  of  Highland  Park  (Ky.  C.  A.  1908),  113  S.  W.  507 

175,  226,  268 

Schmidt  v.   Indianapolis,   168   Ind.  631 83,  211 

Schmidt  v.  Mitchell,  84  111.   195 429,  432,  4S7 

Schullherr  v.  State,  68  Miss.  227 367 

Schmither,  Ex  parte,  6  Neb.  108 232 

Schneider  v.  Hosier,  21  Ohio  St.   98 467,  4S7 

Schneider,  Matter   of,   11  Oreg.  28S,  297 15,  204 

Schnedes  v.  State  (Okla  1909),  99  Pac.  894 55 

Schnutt's  License,  37  Pa.  Super.  Ct.  420 248,  311 

Schoenhopen  Brewing  Co's  License,  8  Pa.  Super.  Ct.  141 236 

Schomaker,  Matter  of,  15  Misc.  (N.  Y.)  648. . . .  •. 274 

School  District  v.  Thompson,  51  Neb.  857 331 

Schroder  v.  Crawford,  94  111.   357 429,  458,  487 

Sohuarn   v.   Osborn,   59   Ind.   245 457 

Schulte   v.    Menke,    111    111.    App.    212 421,471 

Schulte  v.   Schleeper,  210  111.  357 421,  429 

Schuck  v.  State,  50  Ohio  St.  493 117 

Schuneman  v.   Sherman,   118  Iowa  230 380 

Schulherr    v.    Bordeaux,    64    Miss.    59 190,195 

Schultz  v.  State,  32  Ohio  St.  276 630 

Schuster's   Appeal,    81   Conn.   276 259,  26S 

Schuyler.   Matter  of,  63   App.   Div.    (N.   Y.)   206 316 

Schuyler,  Matter  of,  32  Misc.  E.  (N.  Y.)  221 306.  313 


TABLE    OF    CASES.  lxxxiii 

SECTIONS 

Schwab  v.  People,  4  Hun   (N.  Y.)   520 36,  653,  655 

Schwartz  v.   People   (Colo.   App.   l'JO'J),   104   Pac.   92 378 

Schwartz  v.   People    (Colo.   1009),   104   Pac.  92 227 

Schwartz  v.  State,  32  Tex.  Cr.  387 194 

Schwearnian  v.  Commonweal t  li,  'J'.)   Ky.  296 280 

Schwuchow  v.  City  of  Chicago,  68  111.  444 136,  164,  187,     220 

Scott  v.  Board  of  Trustees  (Ky.  C.  A.  1909),  116  S.  W.  788 200 

Scott  v.   Chope,   33   Neb.   41 .489 

Scott  v.  Donald,  165  U.  S.  58,  91 82 

Seager  v.   Kankakee  County,   102   111.   669 268 

Sealzo  v.  Sackett,  30  Misc.  R.   (N.  Y.)   543 199 

Searcy  v.  City  of  Lawrence,  20  Ky.  Law  Rep.  1920 197 

Searcy,  City  of,  v.  Turner  (Ark.  1908),  114  S.  W.  472 145 

Seattle  v.  Clark,  28  Wash.  717 204,  225,  308 

Seay  v.  State,  51  Tex.  Cr.  444 396 

Sebastian  v.  State,  44  Tex.  Cr.   508 17,  387,  418 

Secor  v.  Taylor,  41  Hun   (N.  Y.)   123 465 

Segars  v.  State,  35  Tex.  Cr.  45 393 

Segars  v.  State,   (Tex.  Cr.  App.  1899)   51  S.  W.  398 648 

Segars  Ex  parte,  32  Tex.  Cr.   553 3S2 

Seidlitz  v.  Jackson,  (Iowa  1910)   125  N.  W.  228 634 

Seifried  v.  Commonwealth,  101  Pa.  St.  200 637,  653 

Seim   v.   State,   55   Md.    566 586 

Seitz,  Matter  of,  32  Misc.  R.   (N.  Y.)    108 333 

Sellars  v.   Foster,   27   Neb.    118 462 

Senior  v.   Patterman,  44  Ohio  St.  661 173,  178 

Seube,  Ex  parte,   115  Cal.  629 206 

Severance  v.  Murphy,  67  S.  C.  409 91 

Sexton  v.  Board  of  Excise  Commissioners  (N.  J.  L.  1908),  69  Atl.  470. .   279 

Sexson  v.  Kelley,  3  Neb.   104 364 

Seymour,  Matter  of,  47  App.  Div.  (N.  Y.)  320 328 

Sha  ffer  v.  Stern,  160  Ind.  375 261,  262,  263 

Sharp  v.  State,  17  Ga.  290 686 

Sharpley  v.  Brown,  43  Hun  (N.  Y.)  374 488 

Shaw  v.  State,  56  Ind.  188 12.  295 

Shea  v.  City  of  Muncie,  14S  Ind.  14 156,  221,  554 

Shear   v.    Brinkman,    72   Iowa   698 622,  629 

Shear  v.  C.reen,  73  Iowa  688 624,  6S5 

Sheehan  v.  Louisville  &  N.  R.  Co.,  125  Ky.  47S 376 

Shepard  v.  City.  51    La.  Aim.  sir 254 

Sheppard  v.  Dowling,   127   Ala.    1 90 

Sheridan,  Township  of.  v.   Frahm,  102  Iowa  5 182 

Sheriff  v.  Daryle,  107  La.  510 205,  222 

Sherlock   v.   Stuart,  96  Mich.  193 77.  134,  156,  163,  204,   274 

Sherry.  Matter  of,  25   Misc.   R.    ( \\  Y.)   361 255 

Shields  v.  State,  38  Tex.  Cr.  252 387,  393 

Shifletl    v.   Grimsley,   lot    Va.   424 190 

SI)  reveport  v.  Draiss  &  Co.,  Ill  La.  511 209,  304 

Shugart  v.   Egan,   83   111.   56 432,  487 


lxxxiv  TABLE    OF    CASES. 

SECTIONS 

Shull  v.  Arie,  113  Iowa  170 480 

Shultz   v.   Cambridge,   38   Ohio   St.   659 159 

Sibila  v.  Bahney,  34  Ohio  St.  399 420,  427,  465,  469 

Sickinger   v.   State,   45   Kan.   414 630 

Siegle   v.   Rush,    173   111   559 435,  490 

Sif red  v.  Commonwealth,  104  Pa.  St.  179 118 

Sikes,  Ex  parte,   102  Ala.   173 216 

Simms,  Ex  parte,   40  Fla.   432 135,  209 

Simpson  v.  Commonwealth,  30  Ky.  Law  Rep.  132 383 

Sinclair  v.  State,  45  Tex.  Cr.  487 408 

Sires  v.  State,  73  Wis.  251 651 

Sisson  v.  Lampert,  (Mich.  1910)   124  N.  W.  512 420,  487 

Skinner  v.   Hughes,    13    Mo.   440 436 

Skinner  v.  State,  120  Ind.  127 662 

Smith  v.  Barrie,  56  Mich.  314 623 

Smith  v.  Elizabeth,  46  N.  J.  L.  312 250 

Smith  v.  Geer,  10  Tex.  Civ.  App.  252 352 

Smith  v.  Huntington,   3  N.   H.   78 544 

Smith  v.  Kibber,  9  Ohio  St.  563 130 

Smith  v.  Lafar,  67  S.  C.  491 512 

Smith  v.  Madison,  City  of,  7  Ind.  86 209 

Smith  v.  Patton,  103  Ky.  444 378,  383 

Smith  v.  People,  141  111.  446,   447 421,  433,  487 

Smith  v.  Reynolds,    8    Hun    128 436,  487 

Smith  v.  Skow,  97  Iowa  640 180 

Smith  v.  State,   (Ind.  S.  C.  1910)   89  N.  E.  862 278 

Smith  v.  State,  19  Conn.  493 646 

Smith  v.  State,  113  Ga.  758 25 

Smith  v.  State,  112  Ga.  291 370,  386 

Smith  v.  State,  90  Ga.  133 219 

Smith  v.  State,  3  Ga.  App.  326 550 

Smith  v.  Town  of  Warrior,  99  Ala.  481 139 

Smith  v.  Village  of  Adrian,  1  Mich.  495 229,  559 

Smith  v.  Young,  13  Okla.  134 266 

Smith's  Appeal,  65  Conn.  135 241,  284,  285 

Smith,  Ex  parte,  38  Cal.  702 162 

Smith,  Matter  of,  44  Misc.  R.   (N.  Y.)  384 391,  394,  415 

Smiser  v.  State,  ex  rel.  King,  17  Ind.  App.  519 435,  457,  462 

Snead  v.  State  (Tex.  Cr.  1909),  117  S.  W.  983 72,  372 

Snider  v.  State,  81  Ga.  753 17 

Snow  v.  State,  50  Ark.  557 I5 

Snyder  v.  Launt,  1  App.  Div.   (N.  Y.)   142 445 

Snyder   v.   State,   78   Miss.   366 683 

Somers   v.   Vlazney,   64   Neb.   383 248 

Sopher  v.  State,  169  Ind.  177 66,  76,  80,  190 

Sorenson,  In  the  matter  of,  29   Mich.   475 558 

Sothman  v.  State,  66  Neb.  302 21,  49S,  500,  546,  593 

South  v.  Commonwealth,  79  Ky.  493 658 

South  Carolina  R.  Co.  v.  McDonald,  5  Ga.  531 565 


TABLE    OF    CASES  lxxxv 

noire 

Southern  Express  Co.  v.  Ross  Co.,  124  Ga.  581 209,  211 

South  Shore  Club  v.  People,  228  111.  75 579 

Sparks  v.  People,  89   111.  617 227 

Sparrow's   Petition,    138    Pa.    St.    10 268,269 

Speagle,  Ex  parte,  34  Tex.  Cr.  4G5 389 

Specht  v.  Commonwealth,  24  Pa.  St.  103 558 

Sperring's  License,  7   Pa.  Super  Ct.  131 268 

Sperry,  Matter  of,  25  Misc.  R.  (NT.  Y.)  361 246 

Sprayberry  v.  Atlantic,   87  Ga.  120 186,  190,  304,  308 

Springer  v.  United  States,  102  U.  S.  586 500 

Springfield  v.   State,  25  Ga.  474 643 

Stafford  v.  Levinger,  16  S.  D.  118 487 

Stahnka   v.   Kretle,   66   Neb.   829 430 

Stallworth  v.  State,  16  Tex.  App.  345 83 

Stamper  v.  Commonwealth,  102  Ky.  33 374 

Stamper  v.  Commonwealth,  31  Ky.  Law  Eep.  707 376 

Stanley  v.  Leahy,  87  111.  App.  465 439,  440 

Stanley  v.  Monnet,  34  Kan.  708 268 

Stanton  v.  Simpson,  48  Vt.  628 420,  459 

Stapp  v.  State,  33  Ind.  255 644 

Star  Brewery  Co.  v.  Primas,  163  111.  652 623 

Starkey  v.  Palm  (Neb.  1907),  114  N.  W.  287 249 

State  v.  Abbott,  31  N.  H.  434 661,  664 

State  v.  Adams,    16    Ark.    497 662 

State  v.  Adams,  81  Iowa  593 636 

State  v.  Adams,  44  Kan.  135 674 

State  v.  Adams,  20  Iowa  486 288 

State  v.  Adams,  51  N.  H.  568,  569 3,       7 

Slate   v.   Ahern,   54   Minn.    195 686 

State  v.  Aiken,  42  S.  C.  222 76,  78,  89,  91,     93 

State  v.  Allen,   32   Iowa   491 643 

State  v.  Allen,  63  Kan.  598 653,  657 

State  v.  Allmond,  2  Houst.  (Del.)  612 50,  83,     87 

State  v.  Alliance,  65  Neb.  524 271.  276 

State  v.  Ambs,  20  Mo.  214 US 

Slate  v.  American  Express  Co.,  118  Iowa  447 510 

State  v.  Amery,  12  E.  I.  64 51,     83 

Slate  v.  Anderson,    81    Mo.    78 125 

State  v.  Andrews,    26    Mo.    172 193 

State  v.  Andrews,  28  Mo.   14 193 

S-l  ate  v.  Andrews,  11   Neb.  523 213 

State  v.  Andrews.  82  Tex.  73 109 

State    v.    Apfel.    124    La.— 309 

State   v.    Arie,    95    Iowa    375 682 

State  v.  Arlen,  71  Iowa  216 546 

State  v.  Atkinson.  139  Ind.  426 117 

State  v.  Aulman.  76  Iowa  624 124 

State  v.  Austin,  114  N.  C.  855 113,   134.  161 

State  v.  Austin  Club,  89  Tex.  20 691 


lXXXvi  TABLE    OF    CASES. 

SECTIONS 

State  v.  Back,  99  Mo.  App.  34 643 

State   v.    Bailer,   91    Minn.    186 181 

State  v.  Bailey,  43  Ark.   150 643 

State  v.  Bailey,  124  La.  65 

State  v.   Baker,  32  Mo.  App.  98 271 

State  v.  Baldwin,  109  Mo.  App.  573 392 

State  v.  Ball,  27  Neb.  601 648,  665 

State  v.  Baker,  50  Oreg.  381,  384 15,  81,  83,  114 

State  v.  Barber,  19  S.  D.  1 368,  370,  371,  395 

State  v.  Barge,  82  Minn.  256 142,  160 

State  v.  Barker,  4  Sneed  (Tenn.)  554 118 

State  v.  Barnett,  110  Mo.  App.  592 670 

State  v.  Barrels  of  Liquor,  47  N.  H.  3G9 541,  544 

State  v.  Barringer,  110  N.  C.  524 103 

State  v.  Barron,  37  Vt.  57 18 

State  v.  Bartlett,  47  Me.  388,  396 521,  527,  537 

State  v.  Basserman,  54  Conn.   88 653 

State  v.  Bass  Pub.  Co.   (Me.  1908),  71  Atl.  894 54,     60 

Spokane  v.  Baughman  (Wash.  1909),  103  Pac.  14 603 

State  v.  Baughman,  20  Iowa  497 666 

State  v.  Bayne,   100  Wis.   35 298 

State  v.  Beam,  51  Mo.  App.  368 375 

State    v.    Beaumier,    87    Me.    214 669 

State  v.  Becker,  20  Iowa  438 643,  655 

State  v.  Beckroge,  49  S.  C.  484 647,  665 

State  v.  Belfast,  68  Me.   187 504 

State  v.  Beloit,   74  Wis.   267 337 

State  v.  Benadom,  79  Iowa  90 202 

State  v.  Bengsch,  170  Mo.  81 179 

State  v.  Benjamin,  29  Vt.   101 661 

St  ate   v.   Bennet,   3   Harr.    (Del.)    565 675 

State  v.  Bennett,  95  Me.   197 530 

State  v.  Bennett,  102  Mo.  App.  247 339 

State  v.  Bennett,   19   Neb.   191 210 

State  v.  Benz,  41  Minn.  30 68,  121 

State  v.  Beswick,  13  K.  I.  211 19 

te   v.   Bevans,   52  Mo.   App.   130 372 

State  v.  Biddle,  54  N.  H.  379 3,     28 

State  v.  Bird,  108  Mo.  App.  163 3S6,  390 

State  v.  Bixman,  162  Mo.  1,  39 44,  77,  83,  130,  132 

Slate  v.  Blair  &  Certain  Intoxicating  Liquors,  72  Iowa  591 522,  525 

State  v.  Blairsdell,  33  N.  H.  388 651 

State  v.  Board  of  Canvassers,  79  S.  C.  246 417 

State  v.  Board  of  Canvassers,  78  S.  C.  461 401 

State  v.  Board  of  Commissioners,  (Wyo.  1909)  105  Pac.  295 194 

State  v.  Bock,   9   Tex.   369 173 

State  v.  Bodecker,  11  Wash.  417 643 

State  v.  Bonnell,  119  Ind.  494 186 

State  v.  Bossa,   69  Conn.   335 402 


TABLE    OF    CASKS.  lxxxvii 

SECTIONS 

State  v.  Boston  &  Pickwick  Club,  45  La.  Ann.  585 190,  584 

State  v.  Boucher,  59   Wis.   477 G4G 

State  v.  Boughner,  5  S.  D.  461 643 

State  v.  Bourk,  34  Mo.  App.  325 395 

State  v.  Bowman,  70  Iowa  566 63  I 

State  v.  Brackett,  41   Minn.   33 121 

State  v.  Bradford,  13  S.  D.  201 642 

State  v.  Bradish,  95  Wis.  205,  207 187,  322,  324 

State  v.  Bradley,  26  Fed.  289 83 

State  v.  Bradley,  96  Me.   121 531,  534 

State  v.  Bradshaw,  2  Swan    (Tenn)   627 642 

State  v.  Brady,  41  Conn.  588 71 

State  v.  Brann,  83  Mo.  480 659 

State  v.  Brattleboro,  68  Vt.  520 98 

State  v.  Brennan,  2  S.  D.  384 45,  77,  638 

State  v.  Brennan's  Liquors,  25  Conn.  278,  286,  287 

499,  500,  502,  524,  530,  537,  542 

State  v.  Brindle,  28  Iowa  512 24 

State  v.  Brittain,  89  N.  C.  574,  576 2,  145 

State   v.   Brooks,    74   Kan.    175 680 

State   v.    Brosins,    39    Mo.    534 674 

State  v.  Brown,   51   Conn.   1 10 

State  v.  Brown,    19    Fla.    563 248 

State  v.  Brown,  135   Iowa   40 283 

State  v.  Brown,  41  La.  Ann.  771 229,  643 

State  v.  Brown,  31  Me.  520 638 

State  v.   Brown,    130   Mo.    App.    214 391,  393,  418 

State  v.    Brown,  60  N.  H.  205 126 

State  v.  Bruce,  26  W.  Va.  153 656 

State  v.   Bryson,  90  X.  C.  747 678 

Stale  v.  Buckner,  20  Mo.  App.  420 644 

State  v.  Buechler,  10  S.  D.  156 182,   189,  200 

State  v.  Buffalo,  City  of,  2  Hill  434 560 

State  v.  Burkett,  51  Kan.  175 638 

State   v.   Burroughs,   72   Me.   479 671 

State  v.   B iii-row's  Liquors,  37  Conn.  4:25 537,  54") 

State  v.  Bush  (Mo.  App.  1909),  118  S.  W.  670 411 

State   v.    Bussamus,  10S  Iowa  11 106 

State   v.    Butcher,  40  Ark.  362 642 

State  v.  Cahen,  35   Md.   236 233 

State   v.   Cain,   78   S.   C.   348 62 

State  v.   Cain,  9   W.   Va.   559 685 

State   v.   Campbell,    214    Mo.    302 368 

State  v.  Cantborn,  40  Mo.   App.  94 247 

State  v.  Capitol  Brew.  &    I.  C<>.  (Ala.  1909),  50  So.  312 178, 

State   v.    Carmody,    50    Oreg.    1 21,  50.  411 1 

State  v.  Carnahan,  63   Mo.   App.  244 677 

State  v.  Carpenter,  20  Ind.  219 651 

State  v.  Carter,   48   Mo.   481 562 


lxxxviii  TABLE    OF    CASES. 

SECTIONS 

State  v.   Carter,  7  Hump.  15S 643 

State  v.  (ass  County  Court   (Mo.  App.  1909),  119  S.  W.  1010 271,  389 

State  v.  Cassety,  1  Rich.  L.   (S.  C.)  90 643 

State  v.  Certain  Intoxicating  Liquors,  64  Iowa  300 526 

v.  Certain  Intoxicating  Liquors,  76  Iowa  243 9 

State  v.  Certain  Intoxicating  Liquors,  92  Iowa  762 551 

State  v.  Chamberlain,  74  Iowa  266 127,  557 

State  v.  Chartrand,    S6    Me.    547 521 

State  v.  Chase,  33  La.  Ann.  287 217 

State  v.   Chilton,   39   Mo.   App.   51 676 

State    v.    Chisnell,    36    W.    Va.    659 643 

State  v.  Church,  6  S.  D.  89 25 

State  v.  City   Council,   7   Wyo.    417 77,  83,  134,  156,  209,  215,  219,  232 

State  v.  Clark,   3  Ind.   451 639 

State  v.  Clark,  54  Mo.  17 209 

State  v.  Clark,  28  N.  H.   176 136,  613 

State  v.  Clark,  62  Vt.   278 611 

State   v.   Cleary,   97   Iowa    413 681 

State  v.  Cloud,  6  Ala.  628 173 

State  v.  Cloughly,  73  Iowa  626 10,  685 

State  v.  Cobaugh,  78  Me.  401 505 

State   v.    Cofen,   48   Me.    464 658 

State  v.  Coffeyville   (Kan.   1908),  97  Pac.   372 225 

State  v.  Cofield,  22  S.  C.   301 191 

State  v.  Coleman,  34  Neb.  440 263 

State  v.  Collins   (Minn.  1909),  120  N.  W.  1081 148 

State  v.  Collins,  68  N.  H.  299 614,  621,  625,  627 

State   v.    Collins,    28    R.    I.    439 685 

State  v.  Collins,   74  Vt.  43 614,  628 

State  v.  Columbia,  17  S.  C.  80 204 

State  v.  Colwell,  3  R.  I.  284 646 

State  v.  Commissioners,  22  Fla.  1 228,  248,  253,  271,  298 

State  v.  Commissioners,  22  Fla.  364 248 

State  v.  Commissioners,   20   Fla.   425 248,  270,  271 

State  v.  Commissioners,  45  Ind.  501 271 

State  v.  Common  Council,  94  Minn.  81 149,  219,  271 

State  v.  Conley,  22   R.   I.   397 194 

State  v.  Conlin,   27  Vt,   318 554 

State  v.  Conner,  30  Ohio  St.  405 665 

State  v.  Connolly,  96  Me.  405 537 

State  v.  Cooke,  24  Minn.  247 386 

State  v.  Cooper,   101  N.  C.  684 372,  417 

State  v.  Corron,   73  N.   H.  434 349 

v.    Costa,    78    Vt.    198 680 

State  v.  Cottengrin,   172  Mo.   129 272 

State  v.  Cottle,   15  Me.  473 662 

State  v.  Couch,  54  S.  C.  286 643 

State  v.  Coulter,  40  Kan.  87 38 

State  v.  County  Court,  66  Mo.  App.  96 241 


TABLE    <>!■'    (ASK-.  lxxxix 

si  '   i 

State  v.  County  Court  (Oreg.  1900),  101  Pac.  907 

State  v.  Courtney,  7:;  [owa  619 

State  v.  Court  of  Common  Pleas,  3G  N.  J.  L.  72 368 

Slate  v.   Cox,   29    Mo.    475 I     7 

State  v.  Crawford,  28  Kan.  743 614 

State  v.  Creeden,  78  Iowa  556 510 

State    v.    (Yon,    23     Minn,     IK) 230, 

State   v.   Cronyn,    48    Mo.    480 562 

State   v.   Crow,    53    Kan.    662 6      .    I 

State  v.  Cummings,  17  Neb.  311 178, 

State   v.   Cummins,   76    Iowa    133 ' 

State  v.  Cunningham,  25  Conn.  195 r, ! 

State   v.   Curley,   33   Iowa   359 685 

State  v.  Currie,   8   N.   W.   545 21 

State  v.   Curtiss,   69   Conn.   8G 688 

State    v.    Curtis,    8   Tex.    Civ.    App.    506 352 

State  v.  D'Alemberte,  30  Fla.  545 24^ 

State  v.  Dannenberg  (N.  C.  1909),  63  S.  E.  946 139 

State  v.  Davis,  44  Kan.  60 128,  616 

State  v.  Davis,  119  La.  247 271 

State  v.  Davis,  23  Me.  403 121 

State  v.  De  Bar,  58  Mo.  395 209 

State  v.  Delano,  54  Me.  501 84 

State  v.  Dennie,  51  La.  Ann.  608 218 

State  v.  Denton,  128  Mo.  App.  304 267 

State  v.  Depeder,  65  Miss.  26 344 

State  v.  Deschamp,   53    Ark.    490 47,     67 

State  v.  Dillard  Moore,  107  Mo.  78 368 

State  v.  Dobbins,  116  Mo.  App.  29 391 

State  v.  Doherty,  3  Ida.  384 175.   189 

State  v.  Donahue,  120  Iowa  154 106,  107,  109 

State  v.  Donald,  165  U.  S.  58 92 

State  v.  Donaldson,  12  S.  D.  259 653,  659,  666 

State  v.  Dorr,   82  Me.   212 79 

State  v.  Dowdy,  145  N.  C.  432 583 

State  v.  Downs,  116  N.  C.  1064 84 

State  v.  Doyle,  15  R.  I.  325 109 

State  v.  Doyle,  11  R.  I.  574 643 

State  v.  Drake,  86  Tex.  329 121 

State  v.  Drake,    83    Wis.    257 399,  403 

State  v.  Duane,  100  Me.  447 519 

State  v.  Dubriel,  (N.  H.)   1909)  72  Atl.  1048 349 

State  v.  Dudgeon  (Neb.  1909),  119  N.  W.  676 134 

State  v.  Dudley,  33  Ind.  App.  640 291 

State  v.  Dugan,    110    Mo.    138 393 

State  v.  Dunlap,  81  Me.  389 644 

State  v.  Dunphy,    79    Me.    104 501,  532 

State  v.  Durein,    70    Kan.    13 47.  77.     S3 

State  v.  Durein.  70   Kan.    1 45.  47,  303 


xc  TABLE    OF    CASES. 

SECTIONS 

State  v.  Durein,    46    Kan.    695 632 

State  v.  Dwyer,  21  Minn.  512 203,  220 

State  v.  Easton  Social  Club,   73   Md.   97 586 

Stan-  v.  Edlavitch,  77  Md.   144 642 

State  v.  Edwards,  60  Mo.  490 640,  686 

State  v.  Eifinger,  44  Mo.  App.  81 19 

State  v.  Elff,    49    Ind.    282 67 

State    v.    Elliott,    45   Kan.    525 669,  677 

State  v.  Emerick,  35  Ark.  324 652 

State  v.  Emery,  98  N.  C.  768 417 

State  v.  Emery,  98  N.  C.  668 653,  686 

State  v.  Erskine,   66  Me.   358 520,  525,  532 

State  v.  Estabrook,  6  Ala.   653 232 

State  v.  Estabrook,   29   Kans.   739 355 

State  v.  Evans,  83  Mo.  319 267,  670 

State  v.  Fairfield,  37  Me.  517 98 

State   v.   Fairgrieve,   29   Mo.   App.   641 646,  647 

State  v.  Falkenheimer,  123  La. 49  So.  214 112,  194 

State  v.  Farmer,  104  N.  C.  887 637,  638,  650 

State  v.  Farrell,  30  W.  Va.  683 643 

State  v.  Fay,  44  N.  J.  L.  474 146 

State  v.  Fenton,  29  Neb.  348 182 

State  v.  Ferguson,  72  Mo.  297 131 

State  v.  Ferguson,  33  N.  H.  424 212 

State  v.  Fezzette,  103  Me.  467 529 

State  v.  Findley,  45  Iowa   435 668 

State  v.  Fire  &  Police  Board  (Colo.  S.  C.  1908)  96  Pac.  554 254 

State  v.  Fisher,  35  Vt.   584 98 

State  v.  Fisher,  33  Wis.   154 65,  151,  339 

State  v.  Fitzpatrick,  16  R.  I.  54,  57 52,  81,  83,  85 

State  v.  Fitzsimmons,  30  Mo.  236 647 

State  v.  Fleckenstein,  26  Minn.  177 218 

State  v.  Fleming,  32  Kan.  588 202 

State  v.  Foreman,   121  Mo.  App.   502 393 

State  v.  Foren,    7S    Kan.    654 551 

State  v.  Forkner,  94  Iowa   1 :;v" 

State  v.  Fort,  107  Mo.  App.  328 248,  268,  271 

State   v.   Foster,  23  N.  H.  348 686,   688 

State  v.  Fragiacomo,  70  Miss.   799 1!!  ; 

State  v.  Frahm,  109  Iowa  101 615 

e  v.  Frame,  39  Ohio   St.  399,  408 83,  174,  184 

State  v.  Fredericks,   16  Mo.   382 293 

State  v.    Frederiekson,    101    Me.    37 9,   81,     83 

e  v.  Freeman,  27  Vt.  520 377 

State  v.    Frost.  103  Tenn.  684 1°4 

■   v.   Fulkerson,   73   Ark.   163 519 

State  v.   Gelpi,  48  La.  Ann.  520 574,   584 

State  v.  Oerhardt,  145   Ind.  439 07,  75,  120,  1S6,  240,  260,  263,  27S 

State  v.  Gerhardt,  48  N.  C.  178 231,  295 


TABLE    OF    CASES.  Xci 

SECTIONS 

State  v  Giersch,  94  N.  C.  720,  724 2,  7,  17,  24,     35 

State  v.  Gifford,  111  Iowa  G48 106,  616, 

State  v.  Gillilan,  (Vt.  1910)  75  Atl.  711 274 

State    v.    Giroux,    75    Kan.    695 682 

State  v.  Gilman,  33  \V.  Va.  146 79,     85 

State     v.  Guiding,   28  Ind.  App.  233 367 

State  v.  Gorman  (Ind.  1908),  85  N.  E.  763 240,  242,  260 

State  v.  Goyette,   11   It.  I.   592 24 

State  v.  Grant,  20  S.  D.  164 678 

State  v.  Grames,  68  Me.  418 504 

State  v.  Graves  (Mo.  1909),  115  S.  W.  1054 3?:. 

State  v.  Gravlin,  16  R.  I.  407 9 

State  v.  Gray,    61    Conn.    39 40,  47,  190,  228 

State  v.  Gray,   111  La.   853 71,     72 

State   v.    Green,    61    S.    C.    12 677 

State  v.  Gregory,   110  Iowa  624 41,  669 

State  v.  Gregory,   74  Kan.  467 128 

State  v.  Grisenhause,  20  Iowa  227 686 

State  v.  Gross,  59  Vt.  226 510 

State   v.   Grunenald,    123    La.— 49    So.    162 190 

State  v.  Guinness,   16  It.  I.  401 9 

State   v.   Gurney,   33   Me.   527 525 

State   v.   Gurney,   37   Me.    156 83 

State  v.   Gurlagh,   76  Iowa    141 676 

State  v.  Gummer,  22  Wis.  441 643 

State  v.  Guthrie,    90   Me.   448 519 

State  v.  Haf soos,  1  S.  D.  382 644 

State  v.  Haines,  35  Oreg.  379 134 

State  v.  Hall,  81  Me.  34 543 

State  v.  Hall,  78  Me.  37 538 

State  v.  Hall,  26  W.  Va.  236 648 

State  v.    Ham,   64   N.   J.   L.   49 124,  676 

State  v.  Hammel,   134   Wis.   61 227,  306 

State  v.  Hanlon,   24   Neb.   608 260 

Stale  v.    Hanson,  16  N.  H.  347 80,   133 

State  v.  Hardy,  7  Neb.  377 155,  190 

State  v.  Harper,   42   La.    Ann.    312 134, 

State  v.  Harper,    58   Mo.    531 232 

State  v.    Ilarrin-ton,   69    N.    IT.    469 671 

State  v.   Harris.    122    [owa    7s 81,    128 

State    v.    Harris    64     [owa    287 680 

State    v.     Harris.    36     Iowa     L36 526,544,551 

State  v.    Harris.    50    Minn.     128 150,153,164 

State  v.  Bartwick,  49  Conn.  101 680 

State  v.  Hatch.  94  Me.  58 648 

State  v.  Harvey.    I  1    Tex.   Civ.   App.   691 

State  v.  Hawley,    25   Minn.    429 376 

State  v.  Hawley,  65  Me.  100 501.  54?. 

State  v.  Haymond,  20  W.  Va.  18 40 


xcjj  TABLE    OF    CASES. 

SECTIONS 

State  v.  Hazelton,  78  Vt,   467 47,  177 

State  v.  Heard,  107  La.  60 659 

State  v.  Heege,  37  Mo.  App.  338 242,  248,  267 

State  v.  Heitseh,   29   Minn.   134 642 

State  v.  Hellman,  56  Conn.   190 120,  134 

State  v.  Henthorn,  46  Kan.  613 632 

State  v.   Hickerson,   3   Heisk   375 643 

State  v.  Hickok,  90  Wis.   161 653 

State  v.  Higgins,  84  Mo.  App.  331 242,  271,  272 

State  v.  Higgins,  71  Mo.  App.  180 267 

State  v.  Higgins,  13  R.  I.  330 686 

State  v.  Hinkel,  131  Wis.  103 204 

State  v.  Hipp,   38   Ohio   St.    199,   206 174,184 

State  v.  Hirsch,  125  Ind.  207 117 

State  v.  Hitchcock,  124  Mo.  App.  101 382,  384 

State  v.  Hitchcock,  68  N.  H.  244 682 

State  v.  Hoard,  123  Ind.  34 662 

State  v.  Hoctor  (Neb.  1909),  120  N.  W.  199 220 

State  v.  Hodgson,   66   Vt.    135 45 

State  v.  Hoja,  60  Conn.  259 293 

State  v.  Holder,   133   N.   C.   709 651 

State  v.  Holland  (Me.  1908),  71  Atl.  1095 532 

State  v.  Hollingsworth,  100  N.  C.  535 374 

State  v.  Holmes,    38   N.   H.   225 187,  303 

State  v.  Holt  County  Court,  39  Mo.  521 268 

State  v.  Horacek,   41    Kan.    87 582 

State  v.  Horton,  21  Oreg.  83 186,  187,  303 

State  v.  Howorth,  70  Iowa  157 667 

State  v.   Hoxsie,   15   R.   I.   1 6S2 

State  v.  Hudson,   78   Mo.   302 189 

State  v.  Huff,  76  Iowa  200 •• 669 

State  v.  Hughes,   24   Mo.    147 289 

State  v.  Hughes,  16  R.  I.  403 5 

State  v.  Humphrey,  40  Mo.  App.  327 644 

State  v.  Hunt,  29  Kan.  762 291 

State  v.  Huntley,  29  Mo.   App.   278 230 

State  v.  Hutchinson,  72  Iowa  561 30 

State  v.  Ilgner,  (Kan.  1910)   105  Pac.  14 628 

State  v.  Ingalls,   59  N.  H.  88 658 

State  v.  Intoxicating  Liquors,  109  Iowa  145 549 

State  v.  Intoxicating  Liquors,   40  Iowa   95 546 

State  v.  Intoxicating  Liquors,  98  Me.  464 511,  552 

State  v.  Intoxicating  Liquors,  85  Me.  304 501 

State  v.  Intoxicating  Liquors,  80  Me.  91 547 

State  v.  Intoxicating  Liquors,  80  Me.  57 683 

State  v.  Intoxicating  Liquors,  73  Me.  278 511 

State  v.  Intoxicating  Liquors,  69  Me.  524 551 

State  v.  Intoxicating  Liquors,   63  Me.   121 506,  508 

State  v.  Intoxicating   Liquors,   61   Me.   520 551 


TABLE    OF    CArfES.  xciii 

8E("I  i 

State  v.  Intoxicating  Liquors,  50  Me.  506 506 

State  v.   Intoxicating  Liquors  (State  v.  Jabbour),  72  Vt.  22 

State  v.  Intoxicating   Liquors,  58  Vt.  594 531,  551 

Slate  v.  Intoxicating   Liquors,  55   Vt.   82 500 

State  v.  Intoxicating   Liquors,    44    Vt.    208 517,  528,  537 

State    v.    Intoxicating   Liquors,   44   Vt.   258 683 

State  v.  Intoxicating  Liquors  (Vt.  1909),  73  Atl.  586 498,  537,  545,  546 

State  v.   Irine,  3   Heisk   (Tenn.)   155 650 

State  v.  Isabel,  40  La.  Ann.  340 224 

State  v.  Jackson,    105    La.    436 378 

State  v.  Jaeger    63    Mo.    403    178. 

State  v.  Jaques,  68  Mo.  260 664 

State  v.  Jeffcoat,  54  S.  C.   196 643 

State  v.  Jenkins,  32  Kan.   477 21 

State    v.    Jepsin,    76    Kan.    644 617 

State  v.  Johnson,  86  Minn.   121 370,  386 

State  v.  Johnson,   72    Miss   896 562 

State  v.  Johnson  37   Neb.   362 324 

State  v.  Johnson  33  N.  H.  441 301 

State  v.  Joyner,  81   N.  C.   534 100 

State  v.   Kane,   15   R.   I.   395 79 

State  v.  Kantler,  33  Minn   69 149,  229 

State  v.  Kapiesky  (Me.  1909),  73  Atl.  830 585 

State  v.  Kaso,    25    Neb.    607 241,  286 

State  v.  Kaufman   75  Mo.   App.   188 391 

State  v.  Kaufman,  45  Mo.  App.  656 391 

State  v.  Keaough,  68  Wis.  135 175 

State  v.  Kein,  34  Wis.  500 664 

State  v.  Keith,  37  Ark.  96 291 

State  v.  Kellogg   (Mo.   1908),   113   S.   W.   660 382,  386,  395 

State  v.  Kellogg,   95    Wis.   672 324 

State  v.  Kennedy,  1   Ala.  31 278 

State  v.  Kennedy,  98  N.  C.  657 178 

S<  ate  v.  Kennedy,  36  Vt.   563 656 

State  v.  Kezer,   74  Vt.   50 38,  39 

State  v.  Kibling,  63  Vt.  636,  645 6,  67.  671 

State  v.  Kiefer,  90  Md.  165 6   7 

State  v.   King,   37  Iowa  462 J 134,  666 

State  v.  Kline,   26   Fed.   515 510 

State  v.   Kline,  50  Oreg.  426 597 

State  v.  Knotts,  24  Ind.  App.  477 4:27 

State   v.    Knowlton,    70    Me.    200 527 

State    v.    Koch,    61    Mo.    117 659 

State  v.  Kolb,  48   Mo.   App.  269 677 

State  v.  Kriechbaum,  81   Iowa  633 686 

State  v.  Krinski,  7s  Vt.  162 39,  682 

State  v.  Knit/.  64   Mo.   App.   123 66S 

State  v.  Kuhn,  24  La  Ann.  474 64:: 

State  v.  Laborde,    119    La.   410 376.  37S 


XC1V 


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SECTIONS 

Laft'er,  3S  Iowa  422 38 

Lager  Beer,  70  N.  H.  454 524 

Lager  Beer,  68  N.  H.  377 10 

Lamos,  26  Me.  258 324 

Lane,  33  Me.  536,  537 637,  638 

Lang,  63  Me.  215 543,  665,  666 

Langton,  29  Minn.  393 151 

Lautz,   90  Mo.   App.   15 677 

Larson,  83  Minn.   124 348 

Lawler,  85  Iowa.  564 622 

Leach,  17  Ind.  App.  174 355 

Leach,  38  Me.  432 533 

Learned,  47  Me.  426 550 

Leavenworth,  36  Kan.  31 210 

Le  Clair,  86  Me.  522 498,  532 

Lemp,   16   Mo.   389 10 

Lemp  Brewing  Co.,  (Kan.  1909)  102  Pac.  504 59 

Leonard,  (Kans.  City  C.A.  1909)  116  S.  W.  14 243,  276,  289 

Lewis,  123  La. — 49  So.   167 190 

Lewis,  86   Minn.   174 672 

Lichta,  130  Mo.  App.  284 305,  324,  329 

Lillard,   78  Mo.   136 38 

Lincoln,  73  Vt.  221 627 

Lisles,   58   Mo.   359 642 

Liquor,  Drew.  38  Vt.  387 527 

Lockyear,  95  N.  C.  633 596 

Looker,  54  Kan.  227 662 

Lovell,   47   Vt.   493 83 

Lowry,  74  N.  C.  121 35 

Ludington,  33  Wis.  107,  115 77,  78,  81,  82,  83,  324,  420 

Ludwig,  21  Minn.  202 134,  164 

Lydick,   11   Neb.   366 298 

Lynch,  72  N.  H.   185 624 

Lynch,  81  Ohio  St.—  55  Ohio  Law  Bull.  Supp.  75 377 

Mackin,    51   Mo.   App.    299 403,  406 

Madeira,   125  Mo.  App.   508 677,  679 

Madison  (S.  D.  1909),  122  N.  W.  647 539,  550 

Mann   (Ind.  A.  C.  1909),  86  N.  E.  976 445 

Manning,  87  Mo.  App.  78 638 

Marion,  14  Mont.  458 665 

Markuson,  7   N.  D.   155 516,  527,  632 

Markuson,   5  N.  D.   147 632 

Marley,  78  Conn.  339 99 

Marsh,    37    Ark.    356 47,  179 

Marston,  64  N.  H.  603 625 

Marchhanks.  61  S.  C.  17 672 

Martin,  Tit  Ark.  340,  341 17,   742 

Martin,  55  Fla.  538 271 

Martin.  3  TTeisk.  (Tenn.)  487 131 


TABLE    OF    <  AM.-.  x.-v 

SECTIONS 

State  v.  Martland,  71  Iowa,  543 364 

State  v.  Maryland  Club,  105  Md.  585 586 

State    v.    Massey,    72    Vt.    210 620,621 

State  v.  Mather,  94  Iowa  42 249 

State  v.  Mattle,  48  La.  Ann.  728 45 

State  v.  Maueke,  18  S.  C.  81 289 

State  v.  May,  52  Kan.  53 21 

State  v.  May,  45  S.  C.  512 643 

State  v.  McAdams,  106  La.  720 232 

Stale  v.  McAnally  (Mo.  App.  1910),  125  S.  W.  1174 372 

State  v.  McCanee,  110  Mo.  398 681 

State  v.  McCann,   59  Me.   383 532 

State  v.  McCann,   61   Me.   116 540 

State  v.  McCleary,  17  Iowa,  44 84 

State  v.  McCofferty,  63  Me.  223 20 

State  v.  McConnell,  90  Iowa,  197 295,  672 

State  v.  McCord,  207  Mo.  519 382,  385 

State   v.   McEntee,   68    Iowa    381 70,  122,  557 

State  v.  MeGahey,   12   N.   D.   535 518 

State  v.  McGinnis,  30  Minn.  48 642 

State  v.  McGinnis,  14  Mont.  462 665 

State  v.  McGlynn,  34  N.  H.  422 682,  686 

State   v.   McGough,   14   R   I.   63 ". 661,  662 

State  v.  McGregor,  88  Minn.   74 160 

State  v.  Mcllvenna,  21  S.  D.  489 226,  279 

State  v.  McKenna,  16  E.  I.  398 9,  674 

State  v.  McManus,  65  Kan.  720 503,  516,  544,  545,  547 

State  v.  McMaster,  13  N.  D.  58 545 

State  v.  McNally,  34  Me.  210 538 

State  v.  McNamara,   69   Me.   133 30 

State  v.  McNeary,    88    Mo.    143 229 

State  v.  McNett,    5    Penn.    (Del.)    334 178,  298,  302 

State  v.  Mead's  Liquors,  46  Conn.  22 550 

State   v.    Mellor,   13    K.    I.    666 611,  683 

State  v.  Mercer,   32   Iowa   405 581 

State  v.    Mercer,   58   Iowa   1S2 124,  642 

State  v.   Metealf,  18  Neb.  431 265 

State  v.   Midgett,  85  N.  C.  538 676 

State  v.  Millard,  39  Mo.  App.  251 218,  232,  233 

State   v.   Miller,    48    Me.    57G 498,  533, 537 

State  v.   Miller,   (Mo.  App.  190S)  108  S.  W.  603 272 

State    v.    Miller,   44   \V.    Va.   385 340 

State    v.    Milwaukee.    129    Wis.    562 220 

State  v.  Minnehan,  83   Me.   310 527 

State  v.  Minnesota  (Minn.  1909)  119  N.  W.  494 15,   589 

State  v  Mitchell  (Mo.  1908)  115  S.  W.  1098 389 

State  v.  Mitchell,  127  Mo.  App.  455 278 

State  v.  Momberg,   14  N.  D.  291 683 

State  v.  Monger,  111  N.  C.  675 193 


xcvi  TABLE    OF    CASES. 

SECTIONS 

State  v.  Monteau  County  Court,  45  Mo.  App.  387 237,  242 

State   v.    Moore,    107   Mo.    78 372 

State  v.  Moore,  5  Blackf.  (Ind.)   118 35 

State  v.  Moran,  40  Me.  129 646 

State  v.  Moran,  46  Wash.  596 21 

State  v.  Morehead,  22  R.  I.  272 24,  25 

State    v.    Morin,    102    Me.    290 683 

State  v.  Moseli,  49  Kan.   142 643 

State  v.  Mueller,  38  Minn.  497 687 

State  v.  Mullenhoff,  74  Iowa  271 181?,  192 

State  v.  Mullins,  67  Ark.  422 664 

State  v.  Mulloy,  111  Mo.  App.  679 267 

State  v.  Muncey,  28  W.  Va.  494 38 

State  v.  Muneh,  57  Mo.  App.  207 683 

State  v.  Munger,  15  Vt.  290 4,  8,  643,  651 

State  v.  Munson,  25  Ohio  St.  381 377 

State  v.  Murgler,  29  Kan.  252 83 

State  v.  Murphy,  23  Nev.  390 34 

State  v.  Murphy,  71  Vt,  127 632 

State  v.  Neeper,  3  G.  Greene  (Iowa)  337 225 

State  v.  Neibovig,  33  Minn.  480 651 

State  v.  Neis,  108  N.  C.  787 596 

State  v.  Nelson,  10  Ida.  522 162 

State  v.  New  Charleston  Hotel  Co.  80  S.  C.  120 621 

State  v.  Newcomb,  107  N.  C.  900 242,  277 

State  v.  New  Orleans,   113   La.   371 78,   82,   226,  271 

State    v.   Nippert,    74   Kan.    371 683 

State  v.  Noel,  73  Iowa,  682 561 

State  v.  Nolan,  37  Minn.  16 218 

State  v.  Northfield,  41  Minn.  211 321 

State  v.  Nulty,  57  Vt.  543 686 

State  v.  O'Brien,  35  Mont.  482 411,  417,  41S 

State  v.   O'Connell,   82   Me.   30 683 

State  v.  O'Connor,   58   Minn.    193 303 

State  v.  Odam,  2  Lea.  220 654 

State  v.  O'Keefe,    41   Vt.    691 656 

State  v.  Oliphant,  128  Mo.  App.  252 411 

•  v.  Oliver,  26  W.  Va.  422 2S 

State  v.  Olson,  38  Minn.  150 670 

State  v.  O'Malley,  132  Iowa  696 685,  688 

te  v.  O'Neal,   (N.   I).  1909)   124  N.  W.  68 676 

Stat.-   v.   O'Neil,  58  Vt.  140 498,  513,  531,  534,  570 

State  v.   Orth,   38   Minn.   150 117 

State  v.  Owen,  15  Mo.  500 15 

State  v.   Packer,  so  N.  ('..  439  36 

State  v.  Packett  (Kans.  City  C.  A.  1909)   119  S.  W.  25 272 

State  v.  Page,    66    Me.    418 36 

State  v.    Parker,  26  Vt.  357 368 

State  v.  Parnell,  16  Ark.  506 643 


TABLE    OF    CASKS.  xcvji 

SECTIONS 

State  v.  Partlow,  91  N.  C.  550 104 

State  v.  Pate,   67   Mo.   488 289 

State  v.  Patner,    44    Kan.    429 637 

State  v.  Patterson,  13  N.  D.  70 518 

State  v.  Paul,  5  R.  I.  185 46,  611 

State  v.  Pearse,   31   Neb.   562 271 

State  v.  Peiree,  26  Kan.   777 350 

State  v.  Pennell,  101  Me.  161 505 

State  v.  Perkins,  26  N.  H.  9 72 

State  v.  Peters,   91    Me.    31 511 

State  v.  Peterson,  38  Minn.  143 653,  670 

State  v.  Pfeifer,  26  Minn.  175 218 

State  v.  Piche,  98  Me.  348 674 

State  v.  Pillsbury,  47  Me.  449 648 

State  v.  Pittman,  10  Kan.  593 232,  651 

State  v.  Pittman,  76  Mo.  56 647 

State  v.  Pitzer,  23  Kan.  250 651 

State  v.  Plamondon,  75  Kan.  269 634 

State  v.  Plunkett,    64    Me.    534 539 

State  v.  Police  Jury,  116  La.  767 276 

State  v.  Police  Jury,  120  La.  163 216 

State   v.   Pond,   93   Mo.    606 368,  370,  371 

State  v.  Poull,  14  N.  D.  557 655 

State  v.  Powell,  3  Lea.  (Tenn.)  164 650 

State  v.  Prats,  10  La.  785 225 

State  v.  Pratt,  34  Vt.  323 672 

State  v.  Prescott,  67  N.  H.  203 661 

State  v.  Pressman,  103  Iowa,  449 218 

State  v.  Price,  75  Iowa,  242 662 

State  v.  Priester,  43  Minn.   373 222 

State  v.  Pritchard,  16  S.  D.  166 8 

State  v.  Probst,  87  N.  C.  560 232 

State  v.   Putnam,  38  Me.  296 98 

State  v.  Quinn,  40  Mo.  App.  573 688 

State  v.  Rathsack  (Neb.  190S),  117  N.  W.  949 265 

State  v.    Uaymond,  24  Conn.  204 680 

State   v.    Reick,    43    Kan.   279 677 

State  v.    Reid    (Mo.  1908)   114  S.  W.  1116 391 

State  v.    Reno,    11    Kan.  674 655 

State  v.  Reynolds,    14   Mont.    383 113,  114,  115 

State  v.   Reyman,  4S  W.  Va.  307 617 

State  v.   Richardson,  48  Oreg.  309 123 

State  v.  Rincke  (Mo.  App.  1909)   121  S.  W.  159 372,  391,  396 

State  v.  Roach.  7:,  Me.  125 30 

te  v.  Roach.  74   Me.  562 507,  550 

State  v.   Roberts,  74  X.  H.  476 65,  75,  76,   190 

State  v.  Kobinson,  49  Me.  285 521 

State  v.  Robinson,  33   Me.   564 524,  527,  550 

State  v.   Robinson.  61  S.  C.  106 674 


xcviii  TABLE    OF    CASES. 

SECTIONS 

State  v.  Rochm,  61  Mo.  82 659 

State  v.  Rogers,  39  Mo.  431 643,  675 

State  v.  Roller,  77  Mo.  120 124 

State  v.  Roney,  133  Iowa,  416 106 

State  v.  Ruferty,  70  Iowa,  16 667 

State  v.  Runyan,  26  Mo.  167 642 

State  v.  Rush,  13  R.  I.  198 25 

State  v.  Rushing,  140  Ala.   187 151 

State  v.     Russell,  131  Mo.  App.  638 282 

S1  ate  v.  Ryan,  81  Me.  107 661 

State  v.  Santo,  2  Iowa  165,  212 527 

State  v.  Sannernid,    38   Minn.    229 670 

State   v.   Sartori,   55   Iowa   340 680 

State  v  Saunders,  66  N.  H.  39 612,  625,  629 

State  v.   Scampini,   77   Vt.   92 368,  653,  662 

State  v.  Schaef er,  44  Kan.  90 29 

State   v.   Schroff,    123    Wis.   98 304 

State  v.  Schiverter,  27  Kan.  499 670 

State  v.  Schmail,  25  Minn.  368 643 

State  v.  Schmid,  57  N.  J.  L.  625 638 

State  v.  Schmidt,  34  Kan.  339 670 

State  v.  Schmidtz,  65  Iowa,  556 310 

State  v.  Schneickardt,  109  Mo.  496 145,  615 

State  v.  Schneiter,  21  Kan.  449 643 

State  v.  Schoenthaler,  63  Kan.  148 671 

State  v.  Schreber,  98  Ind.  184 653 

State  v.  Schreinin,  86  Minn.  253 339 

State  v.  Schroeder,  51  Iowa  197 100 

State  v.  Schuler,  109  Iowa,  111 665 

State  v.  Schumlbach  Brewing-  Co.  56  W.  Va.  333 178 

State  v.  Scott,  96  Mo.  App.  620 237,  248 

State  v.  Searcy,  20  Mo.  489 190 

State  v.  Searcy,   111   Mo.   236 368 

State  v.   Searcy,   39   Mo.   App.   393 396,  419 

State  v.  Seattle,  31  Wash.  149 182 

State  v.  Seilert,  97  Mo.  App.  212 242,  243,  267 

State  v.  Settles,  34  Mont.  448 82,  268 

State  v.  Shank,  74  Iowa,  649 682 

Stat e  v.  Sharpe,  119  Mo.  App.  386 128 

St  ate  v.  Shaw,  32  Me.  570 339 

Stat.-  v.  Shaw,  58  N.  H.   72 126 

State  v.  Shelton,   38   Ind.   App.   80 117 

State    v.    Sh.-lton,    16   Wash.    590 669,  686 

State  v.  Sheppard,  64  Kan.  451 672 

State  v.  Shinn,  63  Kan.  638 642,  644 

Stat.-  v.  Shumate,  44  W.  Va.  490 604 

Stat.-  v.  Simmurs,    142  Mo.   586 131 

State  v.  Sinks,  42  Ohio  St.  345 174 

State  v.  Sioux  Falls  Brewing  Co.  5  S.  D.  39 22 


TABLE    OF    CASES.  X(jx 

SECTIONS 

State  v.  SkeggS,  (Ala.  1908)  46  So.  268 62 

State  v.  Smiley,  L01  N.  C.  709 374,  376 

State   \.   Small,  31  Mo.   197 677 

State  v.   Smith.   7  1    Iowa   580 669 

State  v.  Smith,  64  Me.  423 561 

State  v.  Smith,  5  t  M<-.  33 551 

State  v.  Smith,  38  Mo.  App.  618 382 

State  v.  Smith,  126  N.  C.  1057 72 

State  v.   Snow,   117  N.  C.  774 74,  100,   104 

State  v.  Snow,  3  R.  I.  64 499,  527,  551 

State   v.   Sodini,   84   Minn.   444 679,  687 

State  v.  Solio,  4  Penn.   (Del.)   138 637,  638 

State  v.   Sorrell,  98  N.   C.   738 686 

State  v.  South  Omaha,  33  Neb.  876 252 

State  v.  Spaulding-,  61  Vt.  505 30 

State  v.  Spirituous  Liquors,  68  N.  H.  47 525 

State  v.  Spokane  Falls,  2  Wash.  40 225 

State  v.  Stafford,  67  Me.   125 621 

State  v.  Stakke  (S.  D.  1908)  118  N.  W.  703 386 

State  v.  Stamey,  71  N.  C.  202 643,  660 

State  v.  Stanley,  84  Me.  555 661 

State  v.  Stanton,  37  Conn.  421 131 

State  v.   Staples,   45   Me.   320 648 

State  v.  Staples,  37  Me.  228 538 

State  v.  Stark,  63  Kan.  529 609 

State  v.  Starr,  67  Me.  242 12 

State  v.  State,  114  Ga.  439 643 

State  v.  State,  24  Mo.  530 15 

State  v.  Stephens,  70  Mo.  App.  554 686 

State  v.  Stevens,  47  Me.  357 543 

Stale  v.   Stevens,  114  N.  C.  873 84,   204 

State  v.   Stiff,  104  Mo.  App.  685 271 

State  v.  St.  Louis  Club,  125  Mo.  308 591 

State  v.   Stoffels,   89   Minn.   205,  209 498,  520,  550 

State  v.  Stovall,  103  N.  C.  416 103 

State  v.  Stover,   111  La.  92 677 

State  v.   Strauss,   49  Md.  288 165 

State  v.  Striekford,  70  N.  IT.  297 629 

State  v.  Stroschein,  99  Minn.  248,  251 65,  76 

State  v.  Stucker,  58  Iowa  490 47,    L79 

Stale  v.  Suiter,  78  Vt.  391 682 

State  v.  Superior  Court,  50  Wash.  650 304 

Slate  v.  Sutton,  100  N.  C.  474 71 

State  v.  Swallum,  111  Iowa.  37 128 

State  v.   Swearm^en,   128   Mo.   App.   005 391,  397.  411 

State  v.  Swift,  35  W.  Va.  542 

State  v.  Tanner,  50  Kan.  365 668 

State   v.    Teahon,   50   Conn.   92 683 

State  v.  Teissedre,   30   Kan.   477 21 


c  TABLE    OF    CASES. 

SECTIONS 

State  ex  rel.  Borough  v.  Terheide,  166  Ind.  689 436 

State  v.  Terry,  73  N.  Y.  554 686 

State  v.  Thomas,  74  Kan.  360 632 

State  v.  Thomas,  118  N.  C.  1221 168 

State  v.  Thomas,  7  Rich.  L.  (S.  C.)  481 642 

State  v.  Thompson,   74  Iowa,   119 556,  669 

State  v.  Thompson,  44  Iowa,  399 522,  529 

State  v.  Thompson,  20  W.  Va.  674 7 

State  v.  Thornburg,  16  S.  C.  482 ... . 68 

State  v.  Thornburn,  75  Vt.  18 30 

State  v.  Tisdale,  54  Minn.  105 26 

State  v.  Topeka,  City  of,  31  Kan.  452 204 

State  v.  Topeka,  City  of,  30  Kan.  653 210 

State  v.  Tucker,  45  Ark.   55 229 

State  v.  Tucker,  32  Mo.  App.  620 391 

State  v.  Tullock,  108  Mo.  App.  32 242 

State  v.  Turner,  210  Mo.  77 194,  271 

State  v.  Turner,  (Mo.  App.  1910)  125  S.  W.  531 372,  392 

State  v.  Turner,  18  S.  C.  103,  106 121 

State  v.  Union  Social  Club,  82  S.  C.  142 622 

State  v.  United  States  Express  Co.  70  Iowa  271 510 

State  v.  Van  Vliet,  92  Iowa,  476 418,  608,  663 

State  v.  Viers,  82  Iowa,  397 611 

State  v.  Village  Council  (Minn.  1909)  120  N.  W.  894 329 

Smith  v.  Village  of  Adrian,  1  Mich.  495 570 

State  v.  Vinson,  5  Tex.  Cr.  App.  315 364 

State  v.  Voight,  90  N.  C.  741 277 

State  v  Volkman,  20  La.  Ann.  585 173 

State  v.  Volmer,  6  Kan.  371 , 5,  21.  25 

State  v.  Wadsworth,  30  Conn.  55 4,  10 

State  v.  Waite,  72  Vt.  108 30 

State  v.  Walker,  3  Harr.  547 643 

State  v.  Walker,  56  N.  H.  176 363 

State  v.  Walker,  16  Me.  241 293 

Stokes  v.  Wall,  112  Ga.  349 275 

State  v.  Wambold,  74  Iowa  605 671 

State  v.  Ward,  75  Iowa,  641 556 

State   v.   Warnke,   48   Mo.    451 562 

State  v.  Washington,  44  N.  J.  L.  605 166 

State  v.  Watts,   111  Mo.   554 368 

State  v.  Watts,  101  Mo.  App.  658 10 

State    v.    Wnusan,    137   Wis.    311 310.  328,  337 

State  v.    Weber,   20  Neb.   467 248,  249,  265,  286 

Stnte  v.  Weeks,  67  Me.  60 98 

State  v.  Weeks.  38  Mo.  App.  566 382,  410 

State  v.  Weir,  33   Iowa   134 371 

State  v.  Welch,   36   Conn.   215 152,   153,   166 

State  v.  Welch,  78  Me.  99 518 

State  v.  Wells,  28  Mo.  565 202 


TABLE    OF    CASES.  ci 

SECTIONS 

State  v.  Wenzel,  72  N.  H.  396 388 

State  v.  Whalen,  85  Me.  469 517, 

State  v.  Wharton,  26  Tex.  Civ.  App.  262 344 

State  \.  Wheeler,  25  Conn.  290 47,  83,  498,  516 

State  v.    Whipple,   57   Vt.  637 

State  v.  Whiskey,  54  N.  H.  164 

State  v.  White,  23  Ark.  275 230 

State  v.  While,  115  La.  779 218 

State  v.  Whitener,  23  Ind.  124 340 

State  v.  Wilcox,  42  Conn.  364 386 

Stale  v.  Williams,   143   Ala.   501 271 

State  v.  Williams,  90  Iowa  513 621,  627 

State  v.  Williams,  (Ind.  S.  C.  1910),  90  N.  E.  754 303,  372 

State  v.   Williams,  38  Mo.  App.  37 372 

State  v.  Williams,  11  S.  D.  64 643 

State  v.  Williams,  10  Tex.  Civ.  App.  346 363 

State  v.  Williamson,  21  Mo.  496 34 

State  v.  Wilson,  80  Mo.  303 38 

State  v.  Wingfield,    115   Mo.   426,   428 368,    510,  643 

State  v.   Winson,  5  Tex.  Civ.  App.   315 348 

State  v.  Wise,   70  Minn.  99 H'~ 

State  v.  Witt,  39  Ark.  216 17 

State  v.  Witter,  107  N.  C.  792 151 

State  v.  Wittmar,  12  Mo.  407 9 

State  v.  Woods,  68  Me.  409 539,  553 

State  v.  Woodward,    34   Me.   293 686 

State  v.  WTooley,  59  Vt.  357 637 

State  v.  W'right,  98  Iowa,  702 672 

State  v.  Wright,  68  N.  H.  351 676 

State  v.  Yewell,  63  Md.   120 65,  72,  374 

State  v.  Zimmerman,  78  Iowa  614 682 

State  v.   Zeitler,  63   Ind.   441 656 

State  v.  Zermucklen,    110   Iowa    1 295 

Steelier  v.  People,  217  111.  348 493 

Steele  v.  State,  19  Tex.  App.  425 368,  382,  383 

Steele  v.  Thompson,  42  Mich.   594 435,  448 

Steffy  v.  Town  of  Monroe  City,  135  Ind.  406 159 

St eg marie  Brewing  Co.'s  License,  11  Pa.  St.  Dist.  R.  691 310 

si,  inberger  v.  Stat.  .  :;:.  Tex.  Cr.  492 660 

Steinkuhler  v.  State,  77  Neb.  331 682 

Stella   v.  Stat.-.  77  Ark.  441 ." 677,   680 

Stephens  v.  Henderson,  120  Ga.  218 

Stephen  Es  parte,  114  Cal.  278 203 

Stevens  \.  State,  61  Ohio  St.  597 

Stevenson  v.  Hunter.  5  Ohio   Dee.  27 173.   174 

Stewart  v.  Waterloo  Turn   Yerein.  71    Iowa  226 559,   561,  565 

Stewart,   In  re,  61  Cal.  375 203 

Steyer  v.  McCauley,  102  Eowa  105 619 

Stickland  v.  Bartow.  27  Mich.  68 558 


cjj  TABLE    OF    CASES. 

SECTIONS 

Stickland  v.  Knight,  47  Fla.  327 277 

Stickrod  v.   Commonwealth,   S6  Ky.  285 81,  83,  121,  371,  386 

Stinson  v.  Gardner,  97  Tex.  287 400 

St.  Louis  v.  Smith,  2  Mo.  113 209 

St.  Louis  v.  Weber,  44  Mo.  550 142 

St  Louis  v.  Siegrist,  46  Mo.  593 234 

St,  Louis,  City  of,  v.  Smith,  2  Mo.  113 209 

St.  Louis  Southwestern  Ky.  Co.  v.  Cans,  69  Ark.  252 508 

Stickwell  v.  Brant,  97  Ind.  474 264 

Stokes  v.  Schlachter,  66  N.  J.  L.  247 207 

Stokes  v.  Wall,   112  Ga.   349 275 

Stomml  v.  Timbrel,  84  Iowa  336 84 

Storms  v.  Commonwealth,  105  Ky.  619 196 

Storms  v.  Commonwealth,  20  Ky.  Law  1434 202 

Stoss  v.  State,  3  Mo.  9 666 

Stout  v.  State,  96  Ind.  407 21 

Stout  v.  State,  93  Ind.  150 666 

Strahn  v.  Hamilton,  38  Ind.  57 298 

Straub  v.   Gordon,   27   Ark.   625 173,  198 

Strauss  v.  City  of  Galesburg,  203  111.  234 156,  169,  206 

Strauss  v.   Town   of  Pontiac,   40  111.   301 134,  144,  146 

Streeter  v.  People,  69  111.  595 204,  610 

Streever  v.  Birch,  62  Hun  (N.  Y.)  298 470 

Struble  v.  Nodwift,  11  Ind.  64 457,  465,  661 

Sublett  Ex  parte,  23  Tex.  App.  309 386 

Sullivan  v.  Conrad,  79  Neb.  660 434 

Sullivan  v.  Oneida,  City  of,  61  111.  242 135,  498 

Sullivan  v.  People,  15  111.  233 207 

Sullivan  v.  Radzuweit  (Neb.  1908),  118  N.  W.  371 364,  460 

Sullivan,  Matter  of,  30  Misc.  R.  (N.  Y.)  682 397 

Summas'  License,  12  Pa,  Co.  Ct.  R.  667 300 

Susquehanna  County  Licenses,  3  Pa.  Co.  Ct.  R.  616 268 

Sutherland  v.  McKinney,  146  Ind.  611 263 

Sutter  v.  Fauble,  25  Hun  (N.  Y.)  195 559 

Sutton  v.  Head,  86  Ky.  156 623 

Swan  v.  Wilderson,   10  Okla.   547 260,  278,  324 

Swan,  In  re,  150  U.  S.  637 540 

Swann,  Ex  parte,  96  Mo.  44 45,  368,  369,  370,  371,  372,  375 

Swarth  v.   People,    109   111.   621 223,  267 

Sweeney  v.  Webb,  33  Tex.  Civ.  App.  324 368,  370,  386 

Sweet  v.  Wabash,  City  of,  41  Ind.  7 138,  216,  554 

Swi  ft  v.  Klein,  163  111.  269 158 

Swift  v.  People,  162  111.  534 194 

Swinfin  v.  Lowry,  37  Minn.  345 497 


Taber  v.  City  of  New  Bedford,  177  Mass.  197 281 

Tabor  v.  Lander,  94  Ky.  237 204 


TABLE    OF    CASES.  (  jii 

SECTIONS 

Tally  v.  Grider,  66  Ala.  119 383 

Tanner  v.  Bugg,  74  M<>.  App.  L96 244, 

Tarrall    v.    State,    32    Ala.    557 685 

Tatum  v.  State,  79  Ga.  17G 375 

Tatum  v.  Trenton,  Town  of,  85  Ga.  408 199 

Taxation  Des  Moines  Ry.  Co.,  In  re,  137  Iowa  730 180 

Taylor  v.  Carroll,  145  Mass.  95 445,  493 

Taylor  v.  Felsing,  164  111.  331 459 

Taylor  v.   State,  49  Ind.   555 686 

Taylor  v.  Stott,  44  Tex.  Cr.  App.  437 674 

Taylor  v.  Vincent,  12  Lea.  (Tenn.)  282 178 

Taylor  v.  Wright,  126  Pa.  St,  617 439 

Temmick   v.    Owing,    70    Md.    246 376 

Teney  v.  State,  (Tex.  Cr.  1909)  117  S.  W.  801 413 

Tennant  v.  Krehlemeier  (Iowa  1909),  120  N.  W.  689 69 

Tennessee  Club  v.  Dwyer,  11  Lea  (Tenn.)  452 600 

Tennessee  Club  v. ,  7  Lea.  (Tenn.)  291 600 

Territory  v.  O'Connor,  5  Dak.  397 369,  370,  371 

Territory  v.  Robertson,  19  Okla.  149 16,  156,  210,  226 

Territory  of  Arizona  v.  Connell,  2  Ariz.  339 81 

Territory  of  Oklahoma  v.  City  of  Oklahoma.  19  Okla.  149 615 

Terry  v.  State,  44  Tex.  Cr.  411 674 

Tharpe  v.  State,  89  Ga.  748 674 

Theisen  v.  Johns,  72  Mich.  285 448 

Theisen,  Ex  parte,  30  Fla.  529 157 

Theis's  Case,  6  Pa.  C.  Ct.  R.  396 300 

Theurer  v.  People,  211  111.  296 250,  254,  255 

Thill  v.  Pohlman,  76  Iowa  638 473,  490 

Thoma,  In  re,  117  Iowa,  275 285 

Thomas  v.  Abbott,  105  Mich.  687 405,  417 

Thomas  v.  Commonwealth,  90  Va.  92 26,  390,  418 

Thomas  v.  Dansby,  74  Mich.  398 474,  481,  486 

Thomas  v.  Hinkley,  19  Neb.  324 342,  347,  364 

Thomas  v.  Markbreit,  31  Ohio  C.  C.  335 381 

Thomas  v.  Saunders  (Fla.  1908),  47  So.  796 104,  100,  167 

Thomas  v.  State,  37  Miss.  353 686 

Thomas,  Appeal  of,  169  Pa.  St.  Ill 270 

Thomas,  Petitioner,  In  re,  53  Kan.  659 143 

Thomasson  v.  State.  70  Ala.  20 202 

Thomasson  v.  State,  15  Ind.  449 113,  1S9,  201 

Thompson  v.  Bassett,  0   Ind.  535 341 

Thompson  v.  City  of  Mount  Vernon,  11  Ohio  St.  688 145 

Thompson  v  Eagan,  70  Neb.  109 24S,  252 

Thompson  v.  ffiatt,  145  Ind.  530 204 

Thompson  v.  Kock,  98  Ky.  400 274 

Thompson  v.  State,  37  Ark.  408 646 

Thompson  v  State,  37  Ala.  151 293 

Thompson,  In  re  (Neb.  1909),  120  N.  W.  952 249,  265 

Thorn  v.  City  of  Atlanta,  77  Ga.  661 280 


c\y  TABLE    OF    CASES. 

SECTIONS 

Thornton  v  Territory,  3  Wash.  T.  482 134,  204 

Thorpe  v.  R.  &  B.  R.  Co.,  27  Vt.  140 81 

Throckmorton  v.  State,  20  Ky.  Law  Rep.                 1508 683 

Thurman  v.  State,  43  Tex.  Cr.  569 656 

Thurmond  v.  State,  46  Tex.  Cr.  162 388 

Thurston  v.  Adams,  41  Me.  419 538 

Tibbits  v.  Burster,  76  Iowa,  176 626 

Tierney,  Application,  In  re,  71  Neb.  704 280 

Tierney's  License,  11  Pa.  Co.  Ct.  R.  406 310 

Tigner  v.   State,   119   Ga.   114 663 

Tilbery  v.  State,  10  Lea.  35 667 

Tilf ord  v.   State,   109   Ind.   359 125 

Timm  v.  Harrison,  109  111.  593 177 

Tinker's  Case,  90  Ala.  647 12 

Tinker  v.  State,  90  Ala.  649 24 

Tipton  v.  State,  156  111.  241 121 

Tipton  v.  Thompson,  21  Tex.  Civ.  App.  143 423 

Toman  v.  Westfield,  70  N.  J.  L.  610 330 

Tonella  v.   State,  4  Tex.  App.  325 173 

Toole  v.  State,  88  Ala.  158 408 

Topeka,  City  of,  v.  Raynor,  61  Kan.  10 613 

Topeka,  City  of,  v.  Zufall,  40  Kan.  47 28 

Toppiano  v.  Speed,  199  U.  S.  501 54 

Tousey  v.  DeHuy,  23  Ky.  Law  Rep.  458 388 

Tousey  v.  Stites,  23  Ky.  Law  Rep.  1738 378 

Townsend,  Matter  of,  195  N.  Y.  214 256,  259 

Town  of  Britton  v.  Guy,  17  S.  D.  588 624 

Town  of  Flora  v.  Lee,  5  III.  App.  629 557 

Town  Council  v.  Harbus,  6  Rich.  L.   (S.  C.)   96 355 

Tracy   v.   Ginzberg,   189   Mass.   260 298 

Trageser  v.  Gray,  73  Ind.  250 201 

Trainor  v.  County  of  Multnomah,  2  Oreg.  214 199 

Treahey  v.  Holliday,   43   Kan.  29 124 

Trieberg  v.  State,  94  Ala.  91 685 

Tripp  v.  Flanigan,  10  R.  I.  128 353 

Tripp  v.  Norton,  10  R.  I.  125 349,  364 

Tron  v.  Lewis,  31  Ind.  App.  178 615 

Tross  v.  Board  of  Excise,  59  N.  J.  L.  97 226 

Truesdale  v.   State,  42  Tex.   Cr.   544 387,  409 

Trustees  of  Clintonville  v.  Keeting,  4  Den.  (X.  Y.)  341 207 

Tuck  v.  Town  of  Waldron,  31   Ark.  462 138 

Tupelo  v.   Beard,   56  Miss.    532 199,  225 

Turner  v.  Johnson,   7  Dana.    (Ky.)    435 623 

Turner  v.  Mayor,  78  Ga.  683 135,  376 

Tuttle  v.  Poechert  (Iowa  1909),  121  N.  W.  1057 380 

u 

I'M  rich  v.  Gilmore,  35  Neb.  288 340,  479 

(Jlmer    v.   State,   61   Ala.    208 


TABLE    OF    CASES.  cv 

SECTIONS 

Ulrich's  License,  6  Pa.  Dist.  R.  408 301 

Underbill   Matter,  17  Misc.    R.   (N.   V.)    19 

Unholtz's   License,    191    Pa.    St.    177 

Uniontown  v.  State,   145  Ala.   471 90 

United  States  v.  Angell,    11    Fed.    34 302, 

United  States  v.  Anthony.  :M    Fed.   Cas.    L4460 7 

[Tinted  States  v.  Ash,  75  Fed.  651,  652 34 

United  States  v.  Chevallier;   107    Fed.    434 510 

United  States  v.  Cohn,   2   Ind.   Terr.   474 43 

United  States  v.  Commissioners,   6  Mackey  409 271 

United  States  v.  Davis,  37   Fed.  468 295 

United  States  v.  Ducournau,   54   Fed.   138 12,  19,     21 

United  States  v.  Four  Bottles  of  Sour  Mash  Whisky,  90  Fed.  720 43 

United  States  v.  Giller,  54  Fed.  656 605 

United  States  v.  Halliday,   3   Wall    (U.  S.)   407 43 

United  States  v.  Martin,  14  Fed.  817 43 

United  States  v.  Nelson,  29  Fed.  202 686 

United  States  v.   Powers,  1  Alaska  180 293 

United  States  v.  Richards,  37  Wash.  Law  R.  450 272 

United  States  v.  Shriver,  23   Fed.   134 510 

United  States  v.  Stubblefield,  40  Fed.  454 40 

United  States  v.  Sulton,   165  Fed.   253. 43 

United  States  v.  Warwick,  51  Fed.  280 72 

United  States  Distilling-  Co.  v.  Chicago,   112  111.   19 214 

Utsler  v.  Territory,  10  Okla.  643 671 


Vaccarezzia,  Ex  parte,  52  Tex.  Cr.  105 192 

Vail,  Matter  of,  38  Misc.  R.  (N.  Y.)  392 309 

Vallance  V.  Everts,  3  Barb.  (N.  Y.)  553 569 

Vance   v.   Vandercook  Co.,  170  U.  S.  438 49,  54,  55,   56 

Vanderlip  v.  Derly,  19  Neb.  165 260,  286 

Van  Hook  v.  City  of  Selma,  70  Ala.  361 142.  144,  204,  205 

Van  Northwick  v.  Bennett,  62  N.  J.  L.  151 249,   268 

Van  Tuyl,  In  re,  71  Kan.  639 148 

Vaughan  v.  State  (Tex.  Cr.  1906),  93  S.  W.  741 677 

Veeder,  Matter  of,  31  Misc.  R.  (N.  Y.)  569 251 

Veon  \.  Creaton,  138  Pa.  St.  48 423 

Ver  Si  raeten  v.  Lewis'  .1  udge,  77  Iowa,  130 

Viefhaus  v.  State.  71  Ark.  419 104, 

Village  of  Altamont  v.  Baltimore  &  Ohio  S.  R.  Co.,  184  111.  47 213 

Village  of  Cohoes  v.  Moran,  25  How.  Pr.  i  N.  Y.)  385 152 

Village  of  Coulterville  v.  Gillen,  72  III.  399 208 

Village  of   Mount    l'leasanl    v.   Vansica,   43  Mich.   361 146,  210 

Village  of  Platteville  v.  Bell,  43  Wis.  488 L66 

Village  of  Sparta  v.  Boorom,  129  Mich.  535 72.  1 4 * » .   150 

Vinson  v.  Town  of  Monticello,  118  Ind.  103 139 


cvj  TABLE    OF    CASES. 

SECTIONS 

Yoight  v.  Board  of  Excise,  59  N.  J.  L.  358 187,  317 

Volans  v.   Owen,  74  N.  Y.   526 487 

Volans  v.  Owen,  9  Hun  (N.  Y.)  558 464 

Yoltz  v.  Blackmar,  64  N.  Y.  440-444 443 

Yoss  v.  Terrell,  12  Tex.  Civ.  App.  439 391 


w 

Wadill  v.  Common  Council  (Mich.  1909),  120  N.  W.  355 382 

Wadsworth  v.  Dunnam,  98  Ala.  610 3,   14,  38,     41 

Wagner  v.  Hallock,  3  Colo.  176 510 

Wagner  v.  Town  of  Garrett,  118  Ind.  114 155,  201,  219,  222,  232 

Wakeman's  Appeal,  50  Conn.  733 293 

Wales  v.  City  of  Muscatine,  4  Iowa,  302 565 

Walkaw  v.  Chicago,  217  111.  471 220 

Walker  v.  Columbia  City,  61  Ind.  24 212 

Walker  v.  Darley,  101  111.  App.  575 37 

Walker  v.  McNelly,  121  Ga.  114 212,  624 

Walker  v.  Mobley  (Tex.  1907),  103  S.  W.  490 397,  402 

Walker  v.  People,  5  Colo.  App.  40 114 

Walker  v.  Prescott,  44  N.  H.  511 18 

Walker  v.  Shook,  49  Iowa,  264 540 

Walker  v.  State,  52  Tex.  Cr.  293 411 

Walker's  License,  24  Pa.  Super.  Ct.  90 244 

Wall  v.  State,  10  Ind.  App.  530 429,  492 

Wall  v.  State,  78  Ala.  417 37,  39 

Wall  v.  Tinsley,  107  Ky.  441 402 

Wall.  Ex  parte,  48  Cal.  279 368,  371 

Wallace  v.  Cubanola,  70  Ark.  395 216,  222 

Wallace  v.  King,  3  Barb.  (N.  Y.)  548 375 

Waller  v.  State,  38  Ark.  656 24 

Walling  v.  Michigan,  116  U.  S.  446 51,  59 

Walser  v.  Kerrigan,  56  Ind.  301 457 

Walsh's  License,  208  Pa.  St.  582 245 

Walter  v.  State,  105  Ind.  589 193 

Walters  v.  State,  5  Iowa  507 667 

Walters,  Ex  parte,  65  Cal.  2G9 203 

Walton  v.  City  of  Canon  City,  14  Colo.  App.  352 572 

Wanack  v.  People,  use  of  Alexander,  187  111.  116 440 

Ward  v  Mayor,  8  Baxt.  (Tenn.)  228 168 

Ward  v.  State,  48  Ind.  293 2 

Ward  v.  State,  2  Coldw.  (Tenn.)  605 2S1 

Ward  v.   Thompson,   48  Iowa   588 463,  481,  485 

Ward  Co.  v.  County  Court,  51  W.  Va.  102 190,  218 

Wardell  v.  McConnell,  23  Neb.  150 435,  456,  492 

Warren  v.  Englehart,  13  Neb.  283 494,  495 

Warren  v.  Lawrence,  62  Mich.  251 343 

Warrensburg  v.   McHugh,   122  Mo.   649 207,  368 


TABLE    OF    (ASKS.  evil 

8!  I  TIO.VS 

Warren  Street  Chapel  v.  Excise  Commissioners,  56  N.  J.  L.  411...    194,  278 

Warrick  v.  Bounds,  it  Neb.  411 

Wartelsky  v.  McGee,  10  Tex.  Civ.  App.  220 -*74 

Warwick  v.  State,  48  Ark.  27 679 

Washburn  v.  Mellroy,  7  Johns  (N.  Y.)    134 

Washburn,  Matter  of,  32  Misc.  B.  (N.  Y.)  303 

Washington  v.  Johnson,  12  App.  Cas.  545 271 

Washington  County  Liquor  Licenses,  n   Pa.  Dist.  Rep.  339 

Wason  v.  Severance,  2  N.  H.  501 

Watkins  v.  Grieser,  11  Okla.  302 241,  252,  261,  205,  266,  2   i 

Watrous  v.  Allen,  57  Mich.  302 623 

Watson  v.  State,  55  Ark.  158 24 

Walts  v.  Commonwealth,  78  Ky.  329 191 

Wat  ts  v.   State,    120  Ga.   496 677 

Waugh  v.  Graham,  47  Neb.  153 244,  20S,  276 

Waverly,  City  of,  v.  Bremer  County,  126  Iowa  98 182 

Weaver's  License,  20  Pa.  Super.  Ct.  95 

Webb  v.  State,  11  Lea.   (Tenn.)   662 178,  I 

Webb  City  v.  Parker,   103  Mo.  App.  295 678 

Webber  v.  Williams,  36  Me.  512 295 

Webbs  v.  State,  4  Cold.   (Tenn.)   199 366 

Weber  v.  Wiggins,  11  Ohio  Cir.  Ct.  18 410 

Webster  v.  Hall,  60  N.  II.  7 501 

Webster  v.  State,  110  Tenn.  491 45,  63,  81 

Weil  v.  Calhoun,  25  Fed.  865 368 

Weimer  v.  Bunbury,   30  Mich.  201 500 

Weinandt  v.  State,  80  Neb.  161 682 

Weir  v.  Allen,  47  Iowa  482 522 

Weiser  v.   WTelsh,    112   Mich.    134 452,    47s,  491 

Weiss-Chapman  Drug-  Co.  v.   People,  39  Colo.  374 554,  558,  567 

Weitz  v.  Ewen,  50  Iowa,  34 454 

Welch  v.  Mayor  Council  of  Marion,  4s  Ala.  291 199,  200 

Welch  v.  Jugenheimer,  50  Iowa,  11 422,  434,  459,  480,  482 

Wells  v.  Gueris,  126  Iowa,  340 632 

Wells  v.  State,  118  Ga.  556 643 

Wells  v.  Torrey,  144  Mich.  6S9 219 

Welsh  v.  State,  126  Ind.  71 10,  S3,  201, 

Wemeke  v.  State,  49  Ind.  202 653 

Wenham  v.  Dodge,  98  Mass.  474 98 

Wenner  v.   Bunbury,  30  Mich.  201 500 

Wenner  v.  Edmiston,  24  Kan.  147 420,  435 

Wcrstein   v.   Hoard  of  Suprs.   (Mich.  1909).  120  X.  W.  354 

West  v.   Bishop,  110  Iowa,  410 1-7 

West  v.  Corporate  Authorities  ot  Grenville,  :'•'.'  Ala.  09 218 

West    v.  Slate,  32  Ind.  App.   101 074 

West  v.  State,  35  Tex.  Cr.  48 408 

"West  &  Co.  v.  Board  of  Commissioners,  14  Ida.  353 70,  271 

Westbrook  v.  Miller,  !>s  App.  Div.   (X.  Y.)   590 4.->7 

Westinghausen  v.  People,  4  4  Mich.  205 173 


cviii  rABLE    OF    CASES. 

SECTIONS 

Weston  v.  Carr,  71  Me.  356 544 

Weymire  v.  Wolf,  52  Iowa  533 496 

Whalin  v.  City  of  Macomb,  76  111.  49 563 

Wheaton  v.  King,  69  Ala.  356 295 

Wheaton,  Matter  of,  v.  Slattery,  96  App.  Div.  (N.  Y.)  102 625 

Wheelin's  Petition,  134  Pa.  St.  554 241 

Whisenhurt  v.  State,  18  Tex.  App.  491 378 

Whissen  v.  Furth,  73  Ark.  366 261,  268 

White  v.  Atlantic  City,  62  N.  J.  L.  644 275 

White  v.  Creamer,  175  Mass.  567 313 

White  v.  Prefogle,  146  Inch  64 263 

White  v.  State,  80  Ark.  598 546 

White,  In  re   (Neb.  1909),  123  N.  W.  1034 249 

Whitlock  v.  Bartholomew,  91  Iowa  246 244 

Whitney  v.  Township  Board,  71  Mich.  234 103 

Whittaker,  Matter  of,  63  App.  Div.  (N.  Y.)  442 311 

Whitten  v.  Mayor  and  Council  of  Coving-ton,  43  Ga.  421 219 

Whittington,  Ex  part>,  34  Ark.  394 271 

Whittlesey  v.  Acme  Brewing  Co.,  127  Ga,  208 178 

Wichita,  City  of,  v.  Murphy  (Kan.  1908),  99  Pac.  272 148 

Wiesel,   In   re,   173   Fed.   718 298 

WTiese  v.  Gerndorf ,  75  Neb.  S26 435 

Wightman  v.  Devere,  33  Wis.  570 465,  471,  473 

Wightman  v.  State,  10  Ohio  452 153 

Wigfon  v.  Bowley,  130  Mass.  252 511 

Wilcox  v.  Bryant,  156  Ind.  379 278 

Wiley  v.  Owens,  39  Ind.  429 204 

Wilhelm,  Application  In  re,  124  Iowa,  380 285 

Wilkie  v.  Chicago,  188  111.  453 184 

Wilier  v.  Dwyer,  69  Hun  (N.  Y.)  507 465 

Williams  v.  Citizens,  40  Ark.  290 384 

Williams  v.  City  Council,  68  Ga.  816 199,  214 

Williams  v.  Commissioners,  132  N.  C.  300 176 

Williams  v.  State,  47  Ark.  230 645 

Williams   v.   State,   36   Ark.   430 685 

Williams  v.  State,  107  Ga.  693 667 

Williams  v.  State,  89  Ga.  483 643 

Williams  v.  State,  53  Tex.  Cr.  156 409 

Williams  v.  State,  52  Tex.  Cr.  371 71,   101,  157 

Williams  v.  State,  35  Tex.  Cr.  52 389 

Williams  v.  Troop,  17  Wis.  403 292 

Williamson  v.  State,  41  Tex.  Cr.  461 651,  683 

Willis  v.  Kalmback  (1909),  64  S.  E.  342 368 

Wills  v.  State,  :>,:>,  Ind.  200 10,   18 

Wilson  v.  Bohstedt,  135  Iowa  451 380 

Wilson  v.  Hoot],,  57  Mich.  249 483 

Wilson  v.  Commonwealth,  14  Bush.  159 643 

Wilson  v.  Buses,  99  Ky.  221 386 

Wilson  v.  Lawrence,  70  Ark.  545 368 


TABLE    OF    CASES.  cix 

SECTIONS 

Wilson  v.  Mathis,  145  Ind.  403 276 

Wilson  v.  ROSS  County  Assessor,  40  W.   Va.  :.'T^ 280 

Wilson  v.  Stale,  :;:.  Ark.    114 104,  307 

Wilson  v.  Whelan,  91  (ia.  4G1 149 

Wilson,  In  re,  32  Minn.   145 149,  156 

Winans  v.  i'.ayonne,  44  N.  J.  L.  114 209,  223 

Winona  v.  Whipple,  24  Minn.  61 204 

Winn  v.  State,  43  Ark.  151 17 

Winneconne  v.  Winneconne,  122  Wis.  349 182 

Winston  v.  State,  32  Tex.  Cr.  59 408 

Winterton  v.  State,  65  Miss.  238 375 

Winters  v.  State,  33  Tex.  Cr.  395 601 

Winton   v.   State,   77   Ark.    143 683 

Wolcott  v.  Judge  of  Superior  Court,  112  Mich.  311 339,  347 

Wolf  v.  City  of  Lansing-,  53  Mich.  367 204 

Wolf  v.  State,  59  Ark.  297 36 

Wolf,  Ex  parte,  14  Neb.  24 166 

Wolfe  v.  Johnson,  152  111.  280 490 

Wolter  v.  State,  105  Ind.  589 72 

Wood  v.  Brooklyn,  City  of,  14  Barb.  (N.  Y.)  425 145 

Wood  v.  Lentz,  116  Mich.  275 435 

Wood  v.  School  Dist.  (Neb.  1908),  115,  308 292 

Wood  v.  Thomas,  38  Mich.  686 198 

Woodford  v.  Hamilton,  139  Ind.  481 238 

Woodlief  v.  State,  21  Tex.  App.  412 378 

Woodring  v.  Jacobino  (Wash.  1909),  103  Pac.  809 432 

Woods  v.  Barley,  211  111.  495 459 

Woods  v.  Garvey  (Neb.  190s),  us  X.  W.  1114 159,  241 

Woods  v.  Princeville,  Town  of,  19  Ore.  108 136,  662 

Woods  v.  State,  52  Tex.  Cr.  608 386 

Woods  v.  State  (Tex.  Cr.  App.  1903),  75  S.  W.  37 653 

Woods  v.  Varley  (Garvey),  (Neb.  1908),  118  X.  W.  1114 159,  241 

Woodward  v.  State,  103  Ga.  496 41? 

Wooldridge,  In  re,  30  Mo.  App.  612 396 

Woolkeather  v.  Risley,  38  Iowa  486 435.470.  479,481 

Woolston,  Matter  of,  35  Misc.   R.  (N.  Y.)   735 391 

Wooster  v.  State,  6  Baxt.  (Tenn.)  533 117 

Worley   v.   Spurgeon,  38    Iowa,  465 36,  436 

Wray  v.  Harrison,  116  Ga.  93 248 

Wreidi    v.   State.   48    Ind.   579 688 

Wright  v.  Mayor  (Ga.  1900).  64  S.  E.  807 138 

Wright  v.  O.I'.rien,  98   Me.    196 614 

Wright  v.  People.  L01   111.  126 202 

Wright   v.  Smith,   128  Ga.  432 448 

Wright    v.    State,    37  Tex.    Cr.   3 411 

Wright   v.   State.   36   Tex.   Cr.   35 408 

Wright  v.  Tipton,  92  Tex.  168 423,  471 

Wright  v.  Treat,  S3  Mich.  110 362,  428,  457 

Wyatt  v.  Ryan,  113  Ky.  306 385,  386 


cx  TABLE    OF    CASES. 

SECTIONS 

Wynhamer  v.  People,  13  N.  Y.  378 190 

Wynne  v.  Williamson,  94  Ga.  603 396 

Y 

Yazoo  City  v.  State,  48  Miss.  440 146 

Yost  v.  Commonwealth,  6  Ky.  Law  Rep.  110 643 

Young  v.  Beveridge,  81  Neb.  180 436,  492 

Young  v.  Blaisdell,  138  Mass.  344 303,  322 

Young  v.  Commonwealth,  14  Bush.   161 375 

Youngblood  v.  Sexton,  32  Mich.  406 173,  174,  184 

z 

Zanone  v.  Mound  City,  103  111.  552 271 

Zanone  v.  Mound  City,  11  111.  App.  334 270 

Zavresseller  v.   People,   17   111.   101 193 

Zielke  v.  State,  42  Neb.  750 196,  251 

Zimmerman  v.  Smiley,  62  Neb.  204 492 

Zinn  v.  State  (Ark.  1908),  114  U.  S.  227 60 

Zunzon,  Matter  of,  18  Misc.  R.  (N.  Y.)  653 257,  258,  259 

Zumhoff  v.  State,  4  G.  Greene  (Iowa)  526 643,  662 


LIQUORS. 

CHAPTER  I. 

DEFINITIONS  AND  TERMS. 

Section     1.  Construction  of  term  "  intoxicating  liquors  " — remarks  generally. 

2.  "  Liquor  "  defined. 

3.  "  Intoxicating  liquors  "  defined  and  considered. 

4.  Same  subject — judicial  notice. 

5.  Same  subject — evidence  to  sliow  character  of. 

6.  Same  subject — name  immaterial. 

7.  "  Spirituous  liquors  "  defined  and  considered — "  distilled  spirits." 

8.  Same  subject  continued. 

9.  "  Intoxicating    liquors  " — "  spirituous    liquors  " — where    statutes 

specify  what  are. 

10.  Same  subject  continued. 

11.  "Ardent  spirits"  defined. 

12.  "  Malt  liquor  "  defined. 

13.  "  Vinous   liquors  "  defined. 

14.  "  Intoxication  "  defined. 

15.  "  Dramshop  " — "  dramshop  keeper  " — "  Saloon  "  defined. 

16.  "  Tippling  house  "  defined. 

Sec.  1.  Construction  of  term  ' '  intoxicating  liquors  ' '  remarks 
generally. 
The  question  as  to  what  is  included  in,  or  meant  by,  the  term 
"  intoxicating  liquors  "  is  one  upon  which  there  is  a  decided  lack 
of  harmony,  especially  in  the  earlier  decisions.  As  to  some  liquors, 
courts  have  substantially  agreed  that  they  are  intoxicating  and 
take  judicial  notice  of  the  fact  while  as  to  others  we  find  that  the 

1 


o  DEFINITIONS  AND  TERMS.  [§   2 

decisions  are  directly  in  conflict  and  that  while  there  is  one  line  of 
decisions  which  hold  that  a  certain  liquor  belongs  to  the  general 
classification  "  intoxicating  liquors  "  and  take  judicial  cognizance 
of  the  fact  there  are  others  which  hold  as  to  the  same  liquor  that 
the  question  whether  it  is  intoxicating  is  one  of  fact  for  the  jury. 
In  later  years,  however,  the  determination  of  this  question  has 
been  rendered  less  difficult  owing  to  the  fact  that  the  legislatures  in 
some  of  the  states  have  defined  what  is  meant  by  this  term,  and 
expressly  enumerated  the  liquors  which  come  within  the  operation 
of  the  statute. 

§  2.  "  Liquor  "  defined. 

The  word  "  liquor  "  is  a  comprehensive  one  and  in  its  broadest 
sense  includes  fluids  which  not  only  may  be,  drank  as  a  beverage 
but  those  which,  on  the  other  hand,  cannot  be,  or  are  not  reason- 
ably liable  to  be,  so  used.  Both  intoxicating  and  non-intoxicating 
liquors  are  included  within  the  meaning  of  this  word.  In  its 
ordinary  acceptation,  however,  it  is  generally  understood  as  imply- 
ing those  liquors  which  are  of  an  intoxicating  nature,  that  is  such 
as  are  ordinarily  used  as  a  beverage  and  which  tend  to  and  will 
intoxicate. 

Thus  liquor  it  is  said,  in  its  most  comprehensive  signification, 
implies  fluid  substances  generally — such  as  water,  milk,  blood,  sap, 
juice,  but  in  a  more  limited  sense  and  its  common  application  it 
implies  spirituous  fluids,  whether  fermented  or  distilled, — such 
as  brandy,  whisky,  rum,  gin,  beer  and  wine,  and  also  decoctions, 
solutions,  tinctures,  and  the  like  fluids  in  great  variety.1 

So  it  has  been  declared  in  a  recent  case  that  the  term  "  liquor  " 
or  "  liquors  "  commonly  includes  all  kinds  of  intoxicating  decoc- 

1.  State  v.  Giersch,  98  N.  C.   720,  The    Standard    Dictionary    defines 

723,  4  S.  E.  193.  liquor   as    (1)    Any   alcoholic   or    in- 

See  State  v.  Brittain,  89  N.  C.  574,  toxicating  fluid,    (5)    a  liquid  of  any 

576,  holding  that  the  term  "  liquors  "  sort  as  water,  milk  or  blood, 
generally    implies   spirituous   liquors. 


3] 


DEFINITIONS  AND  TERMS. 


3 


tions,  liquids,  or  beverages  whether  spirituous,  vinous,  malt,  or 

alcoholic.2 

But  where  an  indictment  charged  the  defendant  with  selling 
"  liquors "  and  contained  no  averment  that  it  was  intoxicating 
the  court  held  that  it  should  have  been  quashed  as  the  statute  under 
which  it  was  framed  prohibited  the  sale  of  "  intoxicating  liquors  " 
only.3 

§  3.  "  Intoxicating  liquors  "  denned  and  considered. 

"  Intoxicating  liquors "  reasonably  construed  means  liquors 
which  will  intoxicate,  and  which  are  commonly  used  as  beverages 
for  such  purpose,  and  also  such  mixtures  of  the  same  as,  retaining 
their  alcoholic  qualities,  may  be  used  as  a  beverage  and  become  a 
substitute  for  the  ordinary   intoxicating   drinks.4      Neither  fer- 


2.  Marks  v.  State,  (Ala.  1909),  48 
So.  864.     Per  Mayfield,  J. 

3.  Ward  v.  State,  48  Ind.  293. 

4.  Roberts  v.  State,  4  Ga.  App. 
207,  60  S.  E.  1082. 

The  term  "  intoxicating  liquors " 
has  been  held  to  include  those  bitters, 
beverages  or  decoctions  in  which  the 
distinctive  character  and  iefTect  of 
intoxicating  liquors  are  present,  so 
that  it  may  be  used  as  a  beverage, 
notwithstanding  the  other  ingredi- 
ents it  may  contain.  Marks  v.  State, 
(Ala.  1909),  48  So.  8G4.  Per  May- 
field,  J. 

Upon  the  question  of  what  is  cov- 
ered by  the  phrase  "  intoxicating 
liquors "  it  is  said  in  one  of  the 
earlier  cases  in  New  York :  "  It  seems 
to  me  that  but  one  safe  and  sensible 
line  of  distinction  can  be  drawn  be- 
tween the  different  kinds  of  liquor 
containing  alcohol,  in  order  to  deter- 
mine upon  which  of  them  the  statute 
was  intended  to  operate;  and  that  is 
between  those  which  are  capable  of 
causing  intoxication  and  those  con- 
taining so  small  a  percentage  of  alco- 


hol that  the  human  stomach  cannot 
contain  sufficient  of  the  liquor  to  pro- 
duce that  effect;  as  is  said  to  be  the 
case  with  respect  to  spruce  beer,  gin- 
ger beer,  lager  beer  and  some  others. 
It  must  be  strong  liquor:  that  is 
strong  enough  with  the  inebriating 
principle  or  element  whether  obtained 
by  distillation  or  fermentation,  to 
produce  intoxication."  Board  of  Com- 
missioners v.  Taylor,  21  N.  Y.  173, 
178.     Per  Welles,  J. 

"  Hop  tonic  "  "  homestead  ci- 
der.—Where  the  sale  of  "  intoxicating 
beverages  "  or  "  intoxicating  liquors  " 
was  forbidden  within  four  miles  of 
any  schoolhouse  the  sale  of  "  hop 
tonic  "  and  "  homestead  cider  "  which 
intoxicated  the  purchaser  to  the  ex- 
lent  of  absolute  drunkenness  was  held 
to  be  a  violation  of  the  act.  it  being 
declared  that  all  intoxicating  liquids 
or  drinks,  of  whatever  name,  kind  or 
quality  were  within  the  prohibition 
of  Buch  law.  Moore  v.  State,  90  Tenn. 
544.   35   S.  W.  556. 

The  word  "  intoxicating "  in- 
cludes  a   larger   class  of   cases   than 


4  DEFINITIONS  AND  TERMS.  [§   4 

mentation  nor  the  presence  of  alcohol  can  be  adopted  as  an 
absolute  legal  test  to  determine  whether  any  liquid  is  intoxicating 
or  not,  inasmuch  as  there  are  fermented  liquors  containing  alcohol, 
which,  do  not  inebriate.5  Generally,  however,  any  liquor  con- 
taining alcohol  which  is  based  on  such  other  ingredients  or  by 
reason  of  the  absence  of  certain  ingredients  that  it  may  be  drank 
by  an  ordinary  person  as  a  beverage  and  in  such  quantities  as  to 
produce  intoxication,  is  intoxicating  liquor.  If  its  composition  is 
such  that  it  is  practicable  to  commonly  and  ordinarily  drink  it  as  a 
beverage  and  to  drink  it  in  such  quantities  as  to  produce  intoxica- 
tion, then  it  is  intoxicating  liquor.6  But  a  charge  that  declares 
that  no  liquor  is  intoxicating  unless  its  moderate  and  reasonable 
use  will  produce  inebriety  is  to  declare  that  no  liquor  whatever  is 
intoxicating,  and  prescribes  an  erroneous  test.7 

§  4.  Same  subject — judicial  notice. 

Whatever  is  generally  and  popularly  known  as  intoxicating 
liquors,  such  as  whisky,  brandy  or  gin  is  within  the  prohibitions 
and  regulations  of  an  intoxicating  liquor  statute  and  may  be  so 
declared  as  matter  of  law  by  the  courts.8     So  the  fact  that  brandy, 

"  spirituous."  They  bear  the  relation  In  ordinary  use  the  terms,  "  in- 
to each  other  of  genus  and  species;  all  toxicating  bitters  "  and  "  intoxicating 
spirituous  liquors  are  intoxicating,  drinks  "  can  not  be  said  to  mean  the 
but  all  intoxicating  liquors  are  not  same  thing.  Roberson  v.  State,  100 
spirituous.  Commonwealth  v.  Her-  Ala.  123,  14  So.  809. 
rick,  6  Cush  (Mass.)  465,  408.  Per  5.  State  v.  Biddle,  54  N.  H.  379, 
Shaw,  C.  J.,  quoted  in  State  v.  Adams,  382. 

51  N.  H.  568,  569.  6-  Heintz  v.  Le  Page,  100  Me.  542, 

Where  it  was  shown  that  the  62  Atl.   605.     See  Mason  v.   State,   1 

defendant  sold  at  his  saloon  an  Ga.  App.  534,  58  S.  E.   139.     Decker 

article  called  "  pop  ";  that  it  was  v.  State,  39  Tex.  Cr.  20,  44  S.  W.  845. 

a  malt  liquor  which  would  intoxicate  7.  Wadsworth  v.  Dunnam,  98  Ala. 

if  taken  in  sufficient  quantity;  that  it  610,   13  So.  597. 

tasted  like  beer  and  was  drawn  from  8-  Intoxicating    Liquor    Cases,    25 

kegs  like  beer  kegs;   it  was  held  that  Kan.  751,  37  Am.  Rep.  284.     See  also 

the  jury  were  justified  in  finding  the  Marks  v.  State,    (Ala.  1909),  48  So. 

liquor  sold  to  be  a  malt  liquor,  of  an  864. 

intoxicating  quii lily.     Cloodfreidson  v.  "As  to  such  well-known  beverages 

People,  88  111.  284.  as  whisky,  brandy,  gin,  ale  and  strong 


s  r. 


') 


DEFINITIONS   AND  TERMS. 


rum  and  gin  are  spirituous  or  intoxicating  liquors  is  said  to  be 
involved  in  the  very  definition  of  the  terms,  and  is  a  matter  of 
common  knowledge  and  it  is  not  necessary  for  the  jury  to  find  that 
they  are  of  such  a  character.9 

§  5.  Same  subject — evidence  to  show  character  of. 

"  Though  courts  have  taken  judicial  notice,  and  have  said  that 
jurors  might,  from  their  own  knowledge  alone  determine  that 
whisky,  brandy  and  other  liquors  which  are  always  intoxicating, 
were  so,  this  should  not  be  so  as  to  that  which  might  or  might  not 
be  an  intoxicating  fluid  when  sold,  but  only  to  that  kind  which  is 
always  so  and  known  to  everybody  to  be  so."  10  Some  liquors 
are  not  judicially  known  to  be  intoxicating  and  the  question 
whether  such  a  liquor  is  intoxicating  is  one  of  fact  for  the  jury 
and  upon  this  question  evidence  of  its  strength  as  disclosed  by 
an  analysis  is  proper.11     So  in  a  case  in  New  York  it  is  said: 


beer,  the  courts  without  proof  acting 
upon  their  own  knowledge  derived 
from  observation,  will  take  notice 
that  they  are  intoxicating  and  will 
therefore  require  no  proof  of  the 
fact."  Rau  v.  People,  63  N.  Y.  277. 
"  Now  that  ale,  strong  beer,  porter 
and  most  of  the  fermented  drinks, 
known  in  this  county,  and  which  are 
sold  at  public  houses  and  groceries 
by  the  drink,  can  and  do  produce  in- 
toxication to  a  greater  or  less  extent, 
and  that  such  is  the  ordinary  effect 
of  their  use  as  a  beverage,  no  man  of 
mature  years,  who  is  not  strongly  ob- 
livious to  surrounding  and  passing 
events,  can  have  failed  to  observe. 
The  fact  is  90  patent  that  it  is  im- 
possible to  close  our  eyes  against  it." 
Board  of  Commissioners  v.  Taylor, 
21  X.  Y.  17:?.     Per  Welles,  J. 

Mead  or  metlieglin. — It  has  been 
decided  that  the  court  does  not  ju- 
dicially know  that  mead  or  metheglin 
is  an  alcoholic,  spirituous,  vinous  or 


intoxicating  liquor  or  beverage,  or 
that,  if  drunk  to  excess,  it  will  pro- 
duce intoxication.  Marks  v.  State, 
(Ala.   1909),  48  So.  864. 

9.  State  v.  Wadsworth,  30  Conn. 
55.  See  also  State  v.  Hunger,  15  Vt. 
200. 

10.  Feldman  v.  City  of  Morrison, 
1    111.  App.  460.     Ter  Leland,  J. 

11.  Slate  v.  Hughes.  16  R.  I.  403, 
16  Atl.  911.  The  court  said:  "It 
is  a  fact  of  common  knowledge  that 
alcohol  intoxicates  and  consequently 
evidence  of  the  proportion  of  alcohol 
ci  ntained  in  a  liquor  tends  directly 
to  show  its  character  and  strength. 
The  presence  of  alcohol  may  be  so 
considerable  as  necessarily  to  raise  a 
presumption  of  the  intoxicating  qual- 
ity of  the  liquor,  or  so  insignificant 
as  to  prevent  such  a  presumption,  or, 
at  least,  to  make  it  doubtful."  Per 
St  ini'ss,   J. 

••  When  the  statute  uses  merely 
general    terms    such    as    '  alcoholic ', 


6  DEFINITIONS  AND  TERMS.  [§    Q 

"  There  are  doubtless  intoxicating  beverages  which  are  not  so  well 
known  and  of  whose  character  the  courts  could  not  take  notice 
and  more  intoxicating  beverages  may  yet  be  discovered.  As  to  all 
such,  when  one  is  charged  with  selling  them  in  violation  of 
law  there  must  be  proof  that  they  are  intoxicating  before  con- 
viction can  be  had."  12  And  where  a  law  declares  that  all  build- 
ings used  for  the  sale  or  keeping  of  intoxicating  liquors  shall  be 
common  nuisances  but  does  not  define  what  shall  be  included 
within  the  term  "  intoxicating  liquors "  resort  may  be  had  to 
other  laws  to  determine  what  is  so  included.13  Where  under  the 
statute  all  fermented  liquor  is  presumed  to  be  intoxicating,  if  the 
defendant  denies  that  the  fermented  liquor  sold  by  him  is  of  such 
a  character,  it  devolves  upon  him  to  remove  the  presumption  of 
law  by  evidence.14  And  where  one  is  indicted  under  a  statute 
making  penal  the  unlicensed  sale  of  malt  liquors,  the  court  may 
properly  charge  the  jury  that  it  is  not  essential  that  the  liquor 
sold  should  be  proved  to  have  been  intoxicating,  and  that  the  jury 
need  only  "  consider  the  evidence  as  to  whether  the  liquor  was  in- 
toxicating in  determining  whether  it  was  malt  liquor."  15 

§  6.  Same  subject — name  immaterial. 

It  is  immaterial  by  what  name  a  liquor  may  be  called  or  that 
it  is  not  generally  known  to  be  intoxicating,  yet  if  it  appears  from 
the  evidence  that  it  is  of  such  a  character,  the  jury  may  properly 
find  it  to  be  an  "  intoxicating  liquor  "  within  the  meaning  of  the 


'spirituous', 'vinous', 'malt',  and  in-  v.  State  (Ala.  1909)  48  So.  864.    Per 

toxicating   liquors   or  beverages   then  Mayfield,   J. 

it    is    a    question    for    the    courts    or  12.  Rau  v.  People,  63  N.  Y.  277. 

juries  to  determine,  according  to  the  13-  State  v.  Hughes,  16  R.  I.  403, 

facts  in  each  particular  case,  whether  16  Atl.  911,  citing  Commonwealth  v. 

a  given   liquor,   beverage,   or   fluid   is  Carpenter,   100  Mass.  204;    Common- 

within  the  inhibition  of  the   statute.  wealth  v.  Shea,  14  Gray   (Mass.)   86. 

Sometimes   it   is   then   a   question   of  *-*.  State  v.  Volmer,  6  Kan.   371. 

law   for   the  court,   and   sometimes  a  15.  Eaves  v.  State,  113  Ga.  749,  39 

question  of  fact  for  the  jury."    Marks  S.  E.  318. 


§  :J 


DEFINITIONS  AND  TERMS. 


law.18  So  in  charging  the  jury  upon  the  subject  whether  the 
liquid  sold  under  the  name  of  "  pop  beer"  or  "  homemade  beer  " 
was  lager  beer  it  was  decided  that  there  was  no  error  in  stating 
to  them  that  they  were  not  to  be  governed  by  the  name  by  which 
it  was  called,  but  by  what  it  was  in  fact:  and  that  to  convict,  they 
were  to  find  it  established  beyond  a  reasonable  doubt  to  have  been 
lager  beer  that  was  sold.17 

§  7.  ' '  Spirituous  liquors  ' '  defined  and  considered — ' '  distilled 
spirits." 
"Spirituous"  means,  containing,  partaking  of  spirit,  having 
the  refined,  strong,  ardent  quality  of  alcohol  in  greater  or  less 
degree.18  "  Spirituous  liquors "  are  said  technically  and  ac- 
curately to  include  all  liquors  which  contain  alcohol  in  appreciable 
quantities,  but  in  its  ordinary  acceptation  imports  distilled 
liquors.19     The  term  spirituous  liquors  does  not  include  malt  or 


16.  Prussier  v.  Guenther,  16  Abb. 
N.  C.  (N.  Y.)  230.  Thus  a  liquor 
known  as  "sun-smile"  was  held  to 
be  an  intoxicating  liquor  within  the 
meaning  of  the  law. 

17.  State  v.  Kibling,  63  Vt.  636, 
645,  22  Atl.  613. 

18.  State  v.  Giersch,  98  N.  C.  720, 
724,  4  S.  E.   193. 

The  Standard  Dictionary  defines 
spirituous  as  "  1.  Containing  alcohol ; 
especially  containing  a  large  percent- 
age of  alcohol;  intoxicating;  ardent; 
as  spirituous  wine;  specifically,  dis- 
tilled in  distinction  from  fermented 
or  brewed." 

"  Spirituous  liquor  is  that  which  is 
in  whole  or  in  part  composed  of 
alcohol  extracted  by  distillation, 
whisky,  brandy  and  rum  are  exam- 
ples." Mark  v.  State.  (Ala.  1909), 
48   So.  864.     Per  Mayfield,  J. 

19.  Allred  v.  State.  89  Ala.  112,  8 
So.  56. 


Webster  defines  the  word  "  spirit- 
uous"  as  rum,  whisky,  brandy  and 
other  distilled  liquors,  as  disting- 
uished from  wine  and  malt  liquors. 
Sarlls  v.  United  States,  152  V.  S. 
570,  572,  14  Sup.  Ct.  720,  38  L.  Ed. 
556. 

The  Century  Dictionary  defines 
"  spirituous  "  liquors  as  "  containing 
much  alcohol:  distilled,  whether  pure 
or  compounded,  as  distinguished  from 
fermented:  ardent;  applied  to  a  li- 
quor for  drinking."  Sarlls  v.  United 
States,  152  U.  S.  570,  572,  14  Sup. 
Ct.  720,   38  L.  Ed.  556. 

The  Standard  Dictionary  defines 
spirituous  liquors  as  "in  common 
parlance  any  or  all  intoxicating  bev- 
erages, sometimes  excluding  light  in- 
toxicants as  beer:  generally  in  law 
any  intoxicating  liquor,  produced  by 
distillation,  or  by  rectifying,  com- 
pounding or  otherwise  treating  or 
using  distilled  alcoholic  fluids,  in  dis- 


8 


DEFINITIONS  AND  TERMS. 


[§  8 


fermented  liquors.20  So  an  indictment  for  being  common  sellers 
of  "  spirituous  liquors  "  does  not  charge  the  sale  of  ale,  porter  and 
cider  and  evidence  of  the  sales  of  such  liquors  is  not  admissible 
under  such  an  indictment.21  And  spirituous  liquors  are  not  within 
a  statute  in  reference  to  licenses  for  the  sale  of  "  wines,  beer,  ale, 
cider  or  other  fermented  liquor.22  The  term  "  distilled  spirits  "  is 
said  to  have  an  ordinary  and  literal  meaning  which  implies  dis- 
tillation and  when  used  in  that  sense  to  be  confined  to  the  product 
of  distillation.23 

§  8.  Same  subject  continued. 

It  is  said  that  all  spirituous  liquor  is  intoxicating  and  that  it 
is  no  ground  for  a  reversal  that  the  judge  in  designating  the  liquor 
about  which  the  witnesses  testified  used  the  word  "  intoxicat- 
ing "  instead  of  "  spirituous  "  as  used  in  the  information.24     And 


tinetion  from  fermented  or  brewed 
intoxicating  beverages,  as  wine  or 
beer." 

Spirituous  liquors  are  denned  in  a 
case  in  North  Carolina  as  implying 
such  liquors  as  contain  alcohol  and 
thus  have  spirit,  no  matter  by  what 
particular  name  denominated,  or  in 
what  liquid  form  or  combination  they 
may  appear.  State  v.  Giersch,  98 
N.  C.  720,  4  So.  193,  holding  that 
lager  beer  and  wine  are  included  in 
the  words  spirituous  liquors. 

"  Fermented  liquors "  are  not  in 
common  parlance  "  spirituous  li- 
quors." The  latter  term  is  popu- 
larly used  to  designate  distilled  li- 
quors as  distinguished  from  fer- 
mented liquors.  It  implies  "  that  the 
rage  is  composed  in  part  or 
wholly  of  alcohol  extracted  by  dis- 
tillation," and  does  not  apply  to  a 
liquid  whose  alcoholic  properties  are 
latent,  and  exist  substantially  in  the 
same  form  as  in  the  original  mater- 
ial from  which  the  liquid  was  made. 


State  v.  Adams,  51  N.  H.  568,  569. 
Per  Smith,  J. 

20.  Fritz  v.  State,  1  Baxt.  (Tenn.) 
15.  State  v.  Thompson,  20  W.  Va. 
674,  holding  they  do  not  include  beer. 

21.  State  v.  Adams,  51  N.  H.  568. 

22.  Commonwealth  v  Jordan,  18 
Pick.    (Mass.)    228. 

23.  United  States  v.  Anthony,  24 
Fed.  Cas.  14460,  14  Blactchf.  92. 

"  Domestic  distilled  spirits  "  are  de- 
fined in  Pennsylvania  as  meaning 
spirits  distilled  within  that  state  and 
it  was  held  in  this  case  that  parol 
evidence,  that  all  spirits  distilled 
within  the  United  States  are  known 
as  "  domestic  distilled  spirits  "  is  in- 
admissible. It  was  also  held  that 
spirits  manufactured  in  another  state 
and  rectified  in  Pennsylvania  were 
not  within  the  inspection  laws  as  to 
"  domestic  distilled  spirits."  Com- 
monwealth  v.  Giltinan,  64  Pa.  St. 
100. 

24.  State  v.  Pritchard,  16  S.  D. 
166,  91  N.  W.  583. 


§   9]  DEFINITIONS  AND  TERMS.  9 

it  has  been  held  sufficient  to  aver  that  the  respondent  sold  brandy, 
rum  and  gin  without  averring  that  they  were  spirituous  liquors.25 
But  an  indictment  which  charges  the  sale  of  "  spirituous  and  in- 
toxicating liquors"  is  not  supported  by  proof  of  sales  of  liquor 
which  are  intoxicating  but  not  spirituous.26  And  an  indictment 
founded  upon  a  statute  as  to  spirituous  liquors  and  which  charges 
the  sale  of  intoxicating  liquors,  without  alleging  that  they  were 
spirituous  liquors  was  held  not  to  set  forth  the  offense  with 
requisite  certainty.27 

§  9.  "  Intoxicating  liquors  "—"  spirituous  liquors  "—where 
statutes  specify  what  are. 
Where  a  statute  forbids  the  sale  of  "  intoxicating  liquors  "  and 
specifies  therein  the  particular  liquors  which  come  within  the 
meaning  of  that  term,  the  naming  of  such  liquors  fixes  their  char- 
acter as  being  within  the  prohibited  class  and  the  question  whether 
a  particular  liquor  mentioned  is  or  is  not  in  fact  intoxicating  is 
not  material.  So  it  has  been  said  that  "  when  it  appears  that  a 
liquor  comes  within  the  scope  of  the  forbidden  enumeration,  that 
moment  its  intoxicating  character  becomes  fixed  by  law  and  its 
non-intoxicating  character,  as  a  matter  of  fact,  becomes  entirely 
immaterial  with  respect  to  the  application  of  the  statute."  2S  And 
similar  words  are  used  in  a  recent  case  Alabama.2811     So  a  liquor 

25.  State  v.  Munger,  15  Vt.  290.  "any    liquor    or    mixture    of    liquors 
Judicial  notice  will  be  taken  that      which    shall   contain    more   than    two 

whisky,  brandy  and  rum  are  spiritu-  per   cent    by    weight   of   alcohol"   has 

ous.      Marks    v.    State    (Ala.    1909),  been    held    constitutional    as    an    ex- 

48  So.  864.  ercise    of    police    power.       State    v. 

26.  Commonwealth  v.  Livermore,  4  Gravelin,   1<>   K.   I.   407,   lti  Atl.   914; 
Gray   (Mass.),  18.  State  v.   Guinness,    1G   R.   I.   401,    1G 

^r.  McDuffie  v.  State,  S7  Ga.  687,  Atl.  910:   See  state  v.  McKenna,   10 

13  S.  E.  500.  R.  I.  398,  17  Atl.  51. 

2S.  State  v.  Frederickson,  101  Me.  -Sn-  "When   a   prohibition   Btatute 

37    63  Atl.  535.     Per  Spear,  J.  names,  designates,  or  enumerates  the 

Constitutionality   of   statute   a  kinds,  classes,  or  Bpecies  or  beverages 

statute     providing     thai     the     words  or    liquors    against    which    its    provi- 

"  intoxicating   liquors"  shall   include  sions   are  directed,   then  there  is   no 


10 


DEFINITIONS  AND  TERMS. 


[§   9 


which  is  not  actually  intoxicating  but  which  is  declared  to  be  of 
such  a  character  by  statute  may  be  described  in  an  indictment  on 
such  statute  as  intoxicating.29  So  where  alcohol  is  declared  by 
statute  to  be  an  intoxicating  liquor  it  is  such  regardless  of  the  fact 
that  the  quantity  drank  at  any  one  time  would  not  have  that  effect 
and  no  matter  how  it  may  be  diluted  or  disguised  it  so  remains  and 
as  a  matter  of  law  is  intoxicating.30  And  where  by  statute  cider 
was  among  other  named  liquors  declared  to  be  intoxicating  when 
kept  and  deposited  with  intent  to  sell  the  same  for  tippling  pur- 
poses or  as  a  beverage  it  was  decided  in  a  recent  case  that  the 
enumeration  of  the  liquors  was  intended  to  include  and  did  in- 
clude cider  when  it  was  so  kept  and  deposited  without  regard  to 
whether  it  might  be  unfermented  and  non-intoxicating  in  fact.31 
Again  where  a  statute  declares  that  the  term  "  intoxicating 
liquor  "  "  as  used  in  this  act  shall  be  construed  to  mean  wine  and 
spirituous  liquors  and  any  composition  of  which  wine  and  spiritu- 
ous liquors  is  a  part,"  it  has  been  decided  that  it  is  not  proper 


room  for  further  inquiry  into  the 
scope  of  such  a  statute.  When  it 
clearly  appears  that  a  given  article, 
liquor,  or  beverage  comes  within  the 
scope  of  the  forbidden  enumeration 
and  is  intoxicating,  its  properties  be- 
come immaterial  to  courts  and  juries 
because  fixed  by  the  law-making 
power  of  the  state."  Marks  v.  State 
(Ala.  1900),  48  So.  8G4,  8G7.  Per 
Mayfield,  J. 

See  Chamberlayne's  Modern  Law  of 
Evidence,  §  700. 

2!>.  Commonwealth  v.  Timothy,  8 
Gray    (Mass.),   480. 

."><>.  State  v.  Certain  Intoxicating 
Liquors.  70  Iowa  243,  41  N.  W.  6,  2 
L.  K.  A.    ' 

So  it  was  said  in  this  case:  "The 
statute  provides  that  the  word  ' in- 
toxicating liquors'  as  used  therein, 
'shall  be  construed  to  mean  alcohol, 
wine,    beer,     spirituous,    vinous    and 


malt  liquors,  and  all  intoxicating 
liquors,  whatever.'  Alcohol  is  there- 
fore an  intoxicating  liquor,  regard- 
less of  the  fact  that  the  quantity 
drank  at  any  one  time  would  not 
have  that  effect.  It  is  immaterial,  in 
a  statutory  sense,  what  effect  alcohol 
may  have  on  the  human  system ;  it 
is  an  intoxicating  liquor.  However 
much  it  may  be  diluted,  it  must  re- 
main an  intoxicant  when  used  as 
a  beverage.  That  is  to  say  the 
statute  provides  that  alcohol  is  an 
intoxicant  whenever  and  however 
used  as  a  beverage;  and  no  matter 
how  it  may  be  diluted  or  disguised  it 
so  remains  simply  because  the  statute 
ho  declares.  The  liquor  in  question 
contained  alcohol,  and  therefore  it, 
as  a  matter  of  law,  was  intoxicating." 
Per  Seevers,  J. 

81.  State  v.  Frederickson,  101  Me. 
37,   03  Atl.   535. 


v    i,,j  DEFINITIONS  AND  TERMS. 

for  the  state  to  ask  a  witness  whether  ale,  porter,  and  beer  are 

intoxicating  liquors  within  the  meaning  of  such  ad 

§  10.  Same  subject  continued. 

Intoxicating  malt  liquor  has  been  held  to  be  within  the  mean- 
ing of  a  statute  declaring  that  by  the  words  "  spirit,"  "  spirituous 
liquor  "  or  "  intoxicating  liquor  "  shall  be  intended  all  spirituous 
or  intoxicating  liquor,  and  all  mixed  liquor  any  part  of  which  is 
spirituous  or  intoxicating  unless  otherwise  expressly  declared.33 
And  under  the  same  statute  it  has  been  decided  that  all  in- 
toxicating wines  and  other  intoxicating  fermented  liquors,  not 
being  expressly  excluded,  come  within  the  meaning  of  the  statute.34 
And  where  the  statute  declares  that  the  words  "  intoxicating 
liquors  "  as. used  therein  shall  apply  to  any  spirituous,  vinous, 
or  malt  liquors  the  court  will  judicially  recognize  the  fact  that 
ale  is  a  malt  liquor  and  within  the  meaning  of  the  statute."5  So 
where  it  is  expressly  provided  by  statute  that  ale  is  included 
among  intoxicating  liquors  within  the  meaning  of  the  act  it  is  not 
necessary  for  the  jury,  on  a  prosecution  for  a  violation  of  the 
statute  to  find  that  ale  is  an  intoxicating  liquor.36  Beer  is  also 
a  malt  liquor  and  where  by  statute  all  malt  liquors  are  made  in- 
toxicating in  a  prosecution  for  the  sale  of  intoxicating  liquors 
without  a  license  on  affidavit  charging  the  defendant  with  the  un- 
lawful sale  of  beer  is  not  objectionable  on  the  ground  that  it  does 
not  charge  the  sale  of  malt  or  intoxicating  liquors.37  And  where 
by  statute  the  term  "spirituous  and  intoxicating  liquors"  in- 
cludes "beer  manufactured  from  hops,  and  malt  or  barley"  a 
complaint  was  In  Id  sufficient  which  charged  the  defendant  with 
selling  "spirituous  liquor  to  wit,  one-half  gallon  of  beer"  with- 


32.  State  v.  Witt  mar.  12  Mo.  4u7.  36.  Wiles  v.  State.  33  Iml.  206. 

33.  State  v.  Lager  Beer,  G8  N.   II.  86.  state  v.   Wadsworth,   30  Conn. 
377,  3!)  Atl.  255.  55. 

34.  Jones    v.    Surprise,    64    N.    H.  37.  Walsh  v.  State,  126  Ind.  71.  25 
243,  9  Atl.  384.  N.   E.  ss:s.   >\   L.   R.   A.   ^;\. 


lL>  DEFINITIONS  AND  TERMS.  [§§    H,  12 

out  a  license  therefor.38  Under  a  statute  which  makes  malt  liquor 
an  intoxicating  liquor  since  the  court  as  a  matter  of  law  must 
know  that  beer  is  a  malt  liquor,  it  is  not  necessary  to  a  conviction 
for  the  jury,  besides  finding  a  sale  of  beer,  to  find  also,  as  a  mat- 
ter of  fact,  that  beer,  which  is  a  malt  liquor ;  is  intoxicating,  as  the 
court  takes  judicial  notice  of  the  fact  that  it  is  intoxicating.39 
Again  beer  being  a  fermented  liquor  it  comes  within  the  meaning 
of  a  statute  which  declares  that  "  all  fermented  drinks  and  wines 
of  every  kind  shall  be  considered  intoxicating."  40  Where  beer 
is  by  statute  classified  as  an  intoxicating  liquor,  if  there  are  kinds 
of  beer  that  are  not  in  fact  intoxicating  the  burden  is  on  a  defend- 
ant to  show  that  the  beer  in  question  was  of  that  kind,  if  he  claims 
such  to  be  the  fact.41 

§  11.  "  Ardent  spirits  "  defined. 

Worcester  defines  "  ardent  spirits  "  as  a  term  applied  to  liquors 
obtained  by  distillation,  such  as  rum,  whisky,  brandy  and  gin.42 
And  in  the  Standard  Dictionary  the  term  is  defined  as  alcoholic 
distilled  spirits.43 

§  12.  "  Malt  liquor  "  defined. 

The  common  and  approved  usage  of  the  term  "  malt  liquor  "  is 
"  an  alcoholic  liquor  as  beer,  ale  or  porter,  prepared  by  fermenting 
an  infusion  of  malt."  44  "  Malt  liquors  "  embrace  porter,  ale, 
beer,  and  the  like,  which  are  the  result  or  product  of  a  process  by 
which  grain — usually  barley — is  steeped  in  water  to  the  point  of 

38.  State    v.    Brown,    51    Conn.    1.  11.  State  v.  Cloughly,  73  Iowa  626, 

And  see  in  this  connection.     State  v.  35  N.  W.  (152. 

Watts,    101   Mo.   App.   658,   74   S.   W.  42.  Sarlls    v.    United    States,    152 

377.      Where   a   similar   conclusion   is  U.   S.   570,   572,   14   Sup.   Ct.   720,   38 

reached.  L.  Ed.  556,  quoted  in  Burch  v.  City 

•"•?>•  Douglas  v.  State,  21  Ind.  App.  of  Ocilla    (Ga.  App.   1908),  62  S.  E. 

302,  52  N.   E.  238.  666. 

See  Stat.-  v.  Walder,  20  Ohio  S.  &  43.  Standard  Diet.,  p.   111. 

C.  P.  Dec.  25.  44.  State  v.  Gill,  89  Minn.  502.  95 

40.  State  v.   Lemp,    16   Mo.   389.  N.    W.    449,    citing    Webster's    Inter- 
national Dictionary. 


§  13] 


DEFINITIONS   AND  T F.K.MS. 


13 


germination,  the  starch  of  the  grain  being  thus  converted  into 
sacharine  matter,  which  is  kiln  dried,  then  mixed  with  hops,  and, 
by  a  further  process  of  brewing,  made  into  a  beverage.45  In 
Alabama  it  has  been  decided  that  the  court  will  take  judicial 
notice  of  the  meaning  of  the  words  "  malt  liquor  "  as  used  in  a 
penal  statute,  and  may,  in  a  proper  case,  give  its  definition  in  a 
charge  to  the  jury.46  But  courts  cannot  judicially  know  that  all 
malt  liquors  are  intoxicating.47  And  where  it  was  provided  by 
statute  that  "  ale,  porter,  strong  beer,  lager  beer  and  all  other  malt 
liquors  shall  be  considered  intoxicating  liquors  within  the  mean- 
ing of  this  chapter,  as  well  as  all  distilled  spirits  "  the  court  de- 
clared that  the  term  malt  liquor  is  a  general  term  embracing 
several  kinds  of  liquor,  and  that  what  liquors  are  embraced 
in  it  is  a  question  of  fact  for  the  jury  and  not  of  law  for  the 
court.48 

§  13.  "  Vinous  liquors  "  denned. 

"  Vinous  liquors  "  are  such  as  are  made  from  the  juice  of  the 


Malt  liquor  is  defined  to  be  a 
beverage  prepared  by  infusion  of 
malt.  United  States  v.  Ducournau, 
54  Fed.  138. 

The  Century  Dictionary  defines 
malt  liquor  as  "  a  general  term  for 
an  alcoholic  beverage  produced 
merely  by  the  fermentation  of  malt, 
as  offered  to  those  obtained  by  the 
distillation  of  malt  or  mash."  Sarlls 
v.  United  States,  152  U.  S.  570,  572, 
14  Sup.  Ct.  720,  38  L.  Ed.  556. 

Mali  liquors  are  the  product  of  a 
process  by  which  grain  is  steeped  in 
water  to  the  point  of  germination,  the 
starch  of  the  grain  being  thus  con- 
verted into  saccharine  matter,  which 
is  kiln  dried,  then  mixed  with  hops 
and.  by  a  further  process  of  brewing, 
made  into  a  beverage.  Marks  v.  State 
(Ala.  1909),  48  So.  804.  citing 
Allred   v.    State.    89    Ala.    112,    8    So. 


56;    1    Mayfield's   Dig.   463;    Tinker's 
Case,  90  Ala.  647,  8  So.  814. 

45.  Allred  v.  State,  89  Ala.  112, 
8  So.  56. 

46.  Adler  v.  State.  55  Ala.  16.  The 
court  also  held  in  this  case  that  it 
would  take  judicial  notice  that 
"  Webster's  Unabridged  Dictionary  " 
was  a  standard  authority  as  to  the 
meaning  of  English  words  and  might 
permit  his  definition  of  those  words 
to  be  given  to  the  jury. 

47.  Eaves  v.  state.  113  Ga.  740.  30 
S.  E.  318;  Shaw  v.  state.  56  Tnd.  188. 
holding  that  an  indictment  for  un- 
lawfully selling  "malt  liquor "  i* 
insufficient  on  the  ground  stated  in 
the  text. 

4S.  State  v.  Starr.  67  Me.  242. 
Compare    Luther    v.    State     (Neb. 
1909).  120  X.  YV.  125. 


14  DEFINITIONS  AND  TERMS.  [§§    14,  15 

orape.49  The  term  is  also  held  to  include  the  juice  of  black- 
berries with  sugar  added,  after  fermentation,  and  to  which  an  ad- 
ditional ingredient  of  alcohol  has  been  added  by  chemical  proc- 
ess.50 So  it  is  said  in  a  recent  case  that  the  term  "  vinous  liquor," 
"  ex  vi  termini,  means  liquor  made  from  the  juice  of  the  grape, 
but  it  may  include  wine  made  from  fruits  or  berries  by  a  like 
process  of  fermentation,  when  sugar  and  alcohol  are  added." 


51 


§  14.  "  Intoxication  ' '  defined. 

The  word  intoxication  has  been  denned  as  meaning  an  abnormal 
mental  or  physical  condition  due  to  the  influence  of  alcoholic 
liquors,  a  visible  excitation  of  the  passious,  an  impairment  of  the 
judgment,  or  a  derangement  or  impairment  of  physical  functions 
or  energies.  * 

§  15.  "  Dramshop  "— "  dramshop  keeper  "— "  Saloon  "  defined. 

A  dramshop  is  a  place  where  spirituous  liquors  are  sold  by  the 
drink  and  although  it  is  commonly  called  a  saloon,  yet  it  is  not  a 
word  of  as  broad  a  meaning  as  the  latter  is.  In  order  to  con- 
stitute a  place  a  saloon  it  is  not  necessary  that  ardent  spirits 
should  be  offered  for  sale  or  that  it  should  do  a  business  requiring 
a  license  under  the  revenue  laws  of  the  state.53     And  a  dramshop 

49.  Allred  v.  State,  89  Ala.  112.  8  53.  Snow  v.  State,  50  Ark.  557,  9 
So.  56;  Adler  v.  State,  55  Ala.  16.  S.  W.  360,  holding  that  a  place  where 

50.  Hinton  v.  State,  132  Ala.  29,  cider,  birch  beer,  ginger  ale,  and  like 
31   So.  563.  refreshments     are    served    after     the 

51.  Marks  v.  State  (Ala.  1909),  48  manner  of  dramshops  is  a  saloon 
S...  864.  Per  Mayfield,  J.,  citing  within  the  letter  and  spirit  of  a  law 
Allred's  Case,  89  Ala.  112,  8  So.  56;  making  it  a  misdemeanor  to  permit 
ArlWs  Case,  55  Ala.  24;  Hinton  v.  a  minor  to  play  pool  in  a  "dramshop 
State,  132  Ala.  29,  31   So.  563.  or  saloon." 

52.  Wadsworth  v.  Dunnam,  98  Ala.  "A  dramshop"  is  a  place  where  a 
610.  13  So.  597.  person   is  engaged  in  the  sale  of  in- 

The  Standard  Dictionary  defines  in-  toxicating     liquors     as     a     business, 

toxication  as  "1.  The  act  of  making  State    v.    Minnesota     (Minn.     1909), 

drunk,  or  the  state  of  being  drunk;  119  N.  W.  494. 

inebriation:  drunkenness.     2.  Figura-  In    Illinois    a    dramshop    has    been 

tively  a  staff  of  great  mental  excite-  defined  by  statute  as  "a  place  where 

ment ;  elation  using  to  frenzy."  spirituous  or  vinous  or  malt  liquors 


L6 


DEFINITIONS  AND  TERMS. 


15 


keeper  was  defined  by  an  early  statute  in  Missouri  to  be  a  person 
"permitted  by  law,  being  licensed  according  to  the  provision* 
the  act,  to  sell  intoxicating  liquors  in  any  quantity  less  than   ; 
quart."  54 

§  16.  ' '  Tippling  house  ' '  defined. 

"A  tippling  house"  is  a  place  where  intoxicating  liquors  are 
sold  and  drank,  where  people  tipple  or  drink  intoxicants  at  the 
place.  The  drinks  may  be  either  sold  or  given  away.  The  term 
"  tippling  house "  is  not  identical  with  the  term  "  disorderly 
house  "  nor  is  either  necessarily  included  in  the  other.05 


are  retailed  by  less  quantity  than  one 
gallon."  Strauss  v.  City  of  Gales- 
burg,  203  111.  2.34,  G7  N.  E.  836. 

The  Standard  Dictionary  defines 
dramshop  as  "  a  place  where  drams 
are  sold;   a  liquor  saloon." 

A  saloon  is  a  building  or  place 
where  liquors  are  kept  for  sale  at 
retail,  and  may  include  more  than  one 
room.  State  v.  Baker,  50  Oreg.  381, 
92  Pac.  1076. 

The  word  "  saloon  "  applied  to 
places  of  resort  is  defined  by  Wor- 
cester to  be  "  a  place  of  refreshment." 
K  if  son  v.  Mayor,  26  Mich.  325. 

The  terms  "  barroom  "  "  drink- 
ing shop  "  and  "  tavern  "  are  said 


to  be  commonly  understood  to  mean 
"  a  house  licensed  to  sell  liquors  in 
small  quantities  to  be  drunk  on  the 
spot."  Matter  of  Schneider,  11  Oreg. 
288,   297. 

A  room  in  a  hotel  set  apart  for  the 
sale  of  intoxicating  liquors  is  a  saloon 
within  the  meaning  of  the  Michigan 
statute  authorizing  villages  to  sup- 
press saloons  for  the  sale  of  liquors. 
Rattenbury  v.  Village  of  Northville, 
122  Mich.   158,  80  N.  W.   1012. 

64.  State  v.  Slate,  24  Mo.  530: 
State  v.  Owen,  15  Mo.  506. 

55.  Territory  v.  Robertson,  19  Okla. 
149,  92  Pac.  144. 


16      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§    17 


CHAPTEE  II. 

PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES. 

Section  17.  Alcohol. 

18.  Ale. 

19.  Beer  generally. 

20.  Beer— strong  beer — judicial  notice  as  to  character  of. 

21.  Beer  as  an  intoxicating  liquor — judicial  notice — decisions. 

22.  Same  subject  continued — contrary  view. 

23.  Same  subject — conclusion. 

24.  Lager  beer. 

25.  Lager  beer — as  an  intoxicating  liquor. 

26.  Brandy. 

27.  Brandy  cherries  and  fruit. 

28.  Cider. 

29.  Cider — hard   cider. 

30.  Cider — statutes  as  to. 

31.  Gin. 

32.  Porter. 

33.  Whisky — as  a  spirituous  liquor. 

34.  Whisky — as  an  intoxicating  liquor. 

35.  Wine. 

36.  Wine — as  an  intoxicating  liquor — statutes. 

37.  Medicines — compounds   recognized  by  standard   dispensatories. 

38.  Compounds — proportion    of   alcohol — question    of   use    as    a   bev- 

erage. 

39.  Compounds — sale  of  to  be  used  as  a  beverage. 

40.  Compounds — good  faith  in  making  sale. 

41.  Compounds — whether    intoxicating   liquor — question   of   fact — ju- 

dicial notice. 

42.  Compounds — whether  intoxicating  liquor — conclusion. 

Sec.  17.  Alcohol. 

Alcohol  is  defined  as  "  a  volatile  organic  body  constantly  formed 
during  the  fermentation  of  the  vegetable  juices,  containing  sugar 


§    17]       PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       17 


in  solution.  In  popular  language,  it  is  the  intoxicating  principle 
of  fermented  liquor.  It  is  exclusively  produced  by  the  process  of 
fermentation."  1  And  it  is  said  to  be  a  matter  of  common  knowl- 
edge, that  alcohol  is  the  intoxicating  element  in  intoxicating 
liquor :  that  pure  alcohol  in  not  used  as  a  beverage :  and  that  all 
intoxicating  liquors  that  are  so  used  contain  alcohol  mingled  with 
other  things  particularly  with  water.2  And  that  alcohol  is  intoxi- 
cating is  held  to  be  a  fact  of  which  the  court  will  take  judicial 
notice  and  of  which  proof  is  unnecessary.3  So  it  has  been  decided 
that  alcohol  is  an  intoxicating  liquor  and  that  under  a  statute  for- 
bidding the  sale  of  intoxicating  liquors  a  defendant  may  be  con- 
victed upon  proof  of  the  selling  of  alcohol  where  it  was  plain  that 
it  was  a  mere  subterfuge  for  evading  the  law.4  Again  in  an  early 
case  in  Illinois  it  is  said  that  alcohol  is  not  in  common  parlance 


hot  and  pungent  to  the  taste,  having 
a  slight,  but  not  offensive  scent.  It 
has  but  one  source  of  fermentation, 
and  is  extracted  from  its  by-products 
by  distillation ;  its  purity  and  strength 
depending  upon  the  degree  of  perfec- 
tion or  completeness  of  distillation. 
Marks  v.  State  (Ala.  1909),  48  So. 
8G4.    Per  Mayfield,  J. 

"  Alcohol,  this  essential  element  in 
all  spirituous  liquors,  is  a  limpid 
colorless  fluid.  To  the  taste  it  is  hot 
and  pungent,  and  it  has  a  slight  and 
not  disagreeable  scent.  It  has  but 
one  source — the  fermentation  of 
BUgar  and  saccharine  matter.  It 
comes  through  fermentation  of  sub- 
stance that  contain  sugar  proper,  or 
that  omit  a  in  starch,  which  may  be 
turned  into  sugar.  All  substances 
that  contain  either  sugar  or  starch, 
or  both,  will  produce  it  by  fermenta- 
tion. It  is  a  mistake  to  suppose,  as 
many  persons  do,  that  it  is  really 
produced   by   distillation.      It   is   pro- 

!•  Eureka  Vinegar  Co.  v.  Gazette 
Printing  Co.,  35  Fed.  570,  571. 

Alcohol    is    defined    as    a    volatile 


organic  body,  a  limpid  colorless  liquid, 
duced  only  by  fermentation,  and  the 
process  of  distillation  simply  serves 
to  separate  the  spirit — the  alochol 
from  the  mixture,  whatever  it  may 
be,  in  which  it  exists."  State  v. 
Giersch,  98  N.  C.  720,  723,  724,  4  S.  E. 
193.     Per  Merrimon,  J. 

The  Standard  Dictionary  defines 
alcohol  as  "  a  volatile,  inflammable, 
colorless  liquid,  of  a  penetrating  odor 
and  burning  taste,  found  diluted  in 
fermented  sugar  or  starchy  sub- 
stances, from  which  it  is  ohtained  by 
repeated  rectification:  the  intoxica- 
ting principle  wines  and  liquors." 

-•  Commonwealth  v.  Morgan,  149 
Mass.  314,-  316,  21  N.  E.  3G9.  Per 
Field,  J. 

3.  Snider  v.  State,  81  Ga.  753,  7 
S.  E.  631,  12  Am.  St.  Rep.  350; 
See  Sebastian  v.  State,  44  Tex.  Cr. 
508,  72  S.  W.  849. 

See  Chamberlayne's  Modern  Law  of 
Evidence,  8  710. 

4.  Winn  v.  State.  43  Ark.  151; 
State  v.  Witt,  39  Ark.  216. 


18      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§18 

considered  a  spirituous  liquor,  although  it  is  the  basis  of  all 
spirituous  liquors  but  the  court  declared  that  it  was  not  prepared 
to  say  that  selling  pure  alcohol  was  not  a  selling  of  spirituous 
liquor.5  And  in  a  recent  case  in  Alabama  it  is  said :  "  Whether 
pure  alcohol  conies  within  the  phrases  '  spirituous  '  or  '  intoxi- 
cating '  liquors  is  a  question  not  well  settled — some  courts  holding 
that  it  depends  upon  the  language  of  the  particular  statute  and 
the  facts  of  each  particular  case,  whether  it  was  sold  or  purchased 
purely  for  medicinal  or  mechanical  purposes  or  to  be  used  as  an 
intoxicating  beverage ;  but  the  weight  of  the  authorities  seems  to 
be  to  the  effect  that,  unless  otherwise  made  by  the  language  or 
provisions  of  the  statute,  it  will  be  included  in  the  terms  '  spiritu- 
ous '  and  '  intoxicating '  liquors."  6  But  in  a  case  in  Arkansas  it 
is  held  that  alcohol  is  not  either  ardent  or  vinous  spirits,  or  liquor 
of  any  kind,7  and  also  in  a  later  case  in  the  same  state  it  is  declared 
that  the  court  does  not  judicially  know  that  alcohol  is  an  intoxicat- 
ing beverage  like  whisky,  nor  that  it  is  in  common  use  for  pur- 
poses of  dissipation,  nor  even  that  it  is  capable  of  being  applied  to 
such  a  use.8  Again  in  a  case  in  Mississippi  it  was  held  that  an 
indictment  charging  the  unlawful  sale  of  alcohol  charged  no 
offense  as  alcohol  was  not  a  "  vinous  or  spirituous  liquor  "  within 
the  meaning  of  the  statute.9 

§  18.  Ale. 

That  ale  is  a  malt  liquor  is  a  fact  of  which  the  courts  will  take 
judicial  notice  10  and  it  has  been  decided  that  whether  ale  is  in- 

5.  Bennett  v.  People,  30  111.  389.  liquors     of    all    kinds,    but    alcohol, 

6.  Marks  v.   State    (Ala.   1909),  48  specifically,  is  neither  the  one  nor  the 
So.  864.     Per  Mayfield,  J  other.     It  is  a  distinct  thing.     It  is 

7.  State   v.    Martin,    34    Ark.    340,  the   intoxicating   principle   of   vinous 
341.  and  spirituous  liquors  but  is  not  such 

8.  State  v.  Witt,  39  Ark.  216.  liquor    in    the    contemplation    of    the 
»•  Lemly  v.  State,  70  Miss.  241,  12       statutes."     Per  Campbell,  J. 

So.  22,  20  L.  R.  A.   654.     The  court  10.  Miles  v.  State,  33  Ind.  206. 

said:    "Alcohol    is    an    ingredient    or  Ale    is    defined    in    the    Standard 

quality     of     vinous     and     spirituous       Dictionary  as  a  "  beverage  made  from 


§   19]       PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.      19 

toxicating  or  not,  is  not  a  question  of  law,  but  of  fact,  and  the 
question  may  be  submitted  to  the  jury  without  evidence  to  show 
that  it  is  intoxicating,  it  being  declared  that  affirmative  proof  of 
such  fact  is  unnecessary  as  everybody  knows  that  it  is  intoxi- 
cating.11 Ale  is  not,  however,  a  spirituous  liquor  within  the  pro- 
hibition of  a  statute  as  to  the  sale  of  "  any  wine  or  spirituous 
liquor,  mixed  or  unmixed  "  but  a  liquor  sold  as  ale  may  be  so 
mixed  with  spirituous  liquor  as  to  fall  within  the  prohibition.12 
But  ale  and  strong  beer  have  been  held  to  be  included  in  the  term 
"  strong  or  spirituous  liquors."  13  In  another  case,  however,  in 
New  York  it  is  decided  that  the  ale  is  not  included  in  the  words 
"  strong  or  spirituous  liquors.14 

§  19.  Beer  generally. 

Beer  is  a  fermented  liquor,  chiefly  made  of  malt.15     And  the 
fact  that  beer  is  a  fermented  liquor  is,  one  of  which  the  courts 


a  fermented  infusion  of  malt,  now 
usually  flavored  with  hops ;  beer,  es- 
pecially that  having  a  good  deal  of 
body.  In  the  United  States  the  word 
ale  as  distinguished  from  beer,  is 
used  for  a  malt  liquor  made  by  '  top- 
fermentation,'  in  which  the  newly 
formed  yeast  goes  to  the  top  of  the 
fermented  liquor  and  is  removed 
therefrom." 

11.  State  v.  Barron,  37  Vt.  57. 

That  ale  is  an  intoxicating 
liquor,  see  People  v.  Hawley,  3  Mich. 
330;  Blatz  v.  Rohrbach,  116  N.  Y. 
450,  22  N.  E.  1049,  6  L.  R.  A.  669. 

Chamberlayne's  Modern  Law  of 
Evidence,  §  708. 

Upon  the  question  whether  ale  is 
intoxicating  it  has  been  decided  that 
it  is  competent  for  the  jury  to  find  it 
to  be  such  on  the  testimony  of  a  wit- 
ness who  saw  and  smelled  but  did  not 
taste  it.  Haines  v.  Hanraham,  105 
Mass.  480. 


12.  Walker  v.  Prescott,  44  N.  H. 
511. 

That  ale  is  not  a  spirituous  liquor, 
see  also  Fleming  v.  New  Brunswick, 
47  N.  J.  L.  231. 

13.  Board  of  Commissioners  v. 
Freehoff,  17  How.  Prac.  (N.  Y.)  442; 
citing  Nevin  v.  Ladue,  3  Den.  437. 

14.  People  v.  Crilly,  20  Barb. 
(N.  Y.)  246;  wherein  the  court 
refers  to  the  opinions  of  the  court  in 
Nevin  v.  Ladue,  3  Den.  (N.  Y.)  437, 
and  said  in  respect  thereto:  "Al- 
though the  opinions  of  the  late  judges 
of  the  court,  and  of  Chancellor  Wal- 
worth who  concurred  with  them,  are 
entitled  to  great  respect,  yet  as  they 
were  expressed  upon  a  question  not 
necessarily  involved  in  the  case  before 
the  court,  they  have  not  the  force  of 
authority,  and  we  are  at  liberty  to 
adopt  and  follow  our  own  conclu- 
sions."    Per  Strong,  J. 

if».  United  States  v.  Ducournau,  54 
Fed.  138. 


20      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§    19 

will  take  judicial  notice.16  Beer  as  it  is  ordinarily  understood 
and  as  it  is  defined  in  the  dictionary  is  a  fermented  liquor.  It  is 
made  from  malted  grain  with  hops,  or  from  the  extract  of  roots 
and  other  parts  of  various  plants  such  as  spruce,  ginger  and  sas- 
safras. It  is  known  under  various  names  and  designated  by  such 
terms  as  ale,  porter,  strong  beer,  small  beer,  lager,  spruce  beer 
and  others.17  And  in  a  case  in  Kentucky  it  is  decided  that  it  is 
a  matter  of  common  knowledge  that  the  word  "  beer  "  when  used 
without  a  prefix  signifies  malt  liquor,  and  that  wherever  malt 
liquor  is  not  intended  to  be  expressed  by  the  use  of  this  word, 
some  prefix  is  used  such  as  root  beer  or  ginger  beer  and  that  when 
the  word  "  beer  "  is  used  alone  it  means  either  common,  lager,  or 
bock  beer.18  In  a  case  in  Rhode  Island,  however,  it  was  held  to 
be  error  to  instruct  the  jury  that  beer  is  a  well  known  malt  liquor, 
and  that  if  the  defendant  sold  under  that  name  something  which 
was  not  a  malt  liquor,  it  ought  to  appear  in  the  testimony,  or  other- 
wise the  jury  should  presume  it  was  a  malt  liquor.     The  court 


16.  State  t.  Effinger,  44  Mo.  App. 
81. 

17.  Blatz  v.  Rohrbach,  116  N.  Y. 
450,  22  N.  E.  1049,  6  L.  R.  A.  669. 

The  Standard  Dictionary  defines 
beer  as  "  1.  An  alcoholic  beverage 
produced  from  various  substances 
containing  starch,  usually  barley,  by 
first  bringing  the  starch  into  a  more 
soluble  condition  by  malting,  then 
boiling  the  ground  malt,  during 
which  operation  the  starch  is  changed 
into  dextrin  and  glucose,  afterward 
boiling  the  product  with  hops  and 
finally  fermenting  it  with  yeast, 
which  decomposes  the  glucose  into 
alcohol  and  carbon  dioxide.  2.  A 
slightly  fermented  beverage  made 
from  infusion  of  roots,  and  other 
parts  of  various  plants,  as  sassafras, 
ginger,  spruce,  etc.,  with  molasses  or 


sugar;  as  ginger  beer,  root  beer, 
spruce  beer." 

"  Dutch  beer "  is  an  intoxicating 
liquor  similar  in  character  to  "  strong 
beer,"  both  of  which  are  produced 
from  similar  materials.  It  is  a  malt 
inebriating  liquor,  differing  only  from 
strong  beer  in  its  strength  being  less 
intoxicating.  People  v.  Wheelock,  3 
Park.  Cr.   (N.  Y.)   9,  15. 

"  Near  beer  "  is  a  term  of  common 
currency  to  designate  all  that  class 
of  malt  liquors  which  contain  so  little 
alcohol  that  they  will  not  produce 
intoxication,  though  drunk  to  ex- 
cess and  includes  in  its  meaning  all 
malt  liquors  which  are  not  within  the 
purview  of  the  general  prohibition 
law.  Campbell  v.  City  of  Thomas- 
ville  (Ga.  1909),  64  S.  E.  815. 

18.  Locke  v.  Commonwealth,  25 
Ky.  Law  Rep.  76,  74  S.  W.  654. 


§§20,21]   ('ARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.  21 

said :  "  We  do  not  think  there  is  any  presumption  of  law,  that 
when  a  man  speaks  of  beer  he  means  a  malt  liquor,  but  we  think 
that  what  he  means  is  a  question  of  fact  for  the  jury.  It  is  matter 
of  common  knowledge  that  there  are  beverages  containing  neither 
malt  nor  any  other  intoxicating  ingredients  which  are  called 
beers."  19 

§  20.  Beer — strong  beer — judicial  notice  as  to  character  of. 

The  courts  are  not  agreed  as  to  whether  judicial  notice 
should  be  taken  that  beer  is  intoxicating.20  But  strong  beer  is 
held  to  be  an  intoxicating  liquor.21  And  it  has  been  held  to  be 
within  the  operation  of  a  statute  prohibiting  "  the  manufacture 
of  intoxicating  beverages  and  the  traffic  therein."  22  It  has  also 
been  held  to  be  included  within  the  meaning  of  the  term  "  strong 
or  spirituous  liquors  "  as  contained  in  an  act  entitled  "  an  act  to 
suppress  intemperance  and  to  regulate  the  sale  of  intoxicating 
liquors.  23  And  it  is  said  that  strong  beer,  small  beer,  and  ale 
were  always  here  and  in  England  recognized  as  intoxicating 
drinks.24  In  New  York  it  is  decided  that  the  courts  take  notice 
that  many  of  the  beverages  sold  under  the  name  of  beer  are  not 
intoxicating,  while  the  stronger  kinds,  such  as  ale,  porter,  and 
strong  beer  are  of  an  intoxicating  kind.25 

§  21.  Beer  as  an  intoxicating  liquor — judicial  notice — decisions. 

In  a  Federal  court  it  is  said  that  the  general  term  "  beer,"  as 
defined  and  commonly  understood,  refers  to  beer  made  from 
malted  grain  and  that  when  any  other  kind  of  beer  is  meant  a 

lf>.  State  v.  Beswick,  13  R.  I.  211,  21.  Markle    v.     Town     Council    of 

43  Am.  Rep.  26n.     Tor  Durfco.  J.  Akron.   14   Ohio  586. 

20.  Eaves  v.  State,  133  Ga.  749,  39  2a>  People  v.  Hawley,  3  Midi.  330. 

S.  E.  318.  23,  R°ar(l      of     Commissioners      v. 

Whether  or  not  "hop  beer"  is       T;,vl"r    21   X    V  l73- 

24.  Blatz   v.   Rohrbach,    116  N.  Y. 


intoxicating  is  a  question  of  fact  for 
the  jury.  State  v.  MeCafferty,  63  Me. 
223. 


450,  22  X.  E.  1049.  6  L.  R.  A.  669. 

25.  Blatz  v.   Rohrbach,    116   X.   Y. 
450,  22  X.  E.  1049.  0  L.  R.  A.  669. 


22      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§   21 

prefix  should  be  added  to  indicate  the  kind  referred  to.26  In 
Indiana  it  has  been  decided  that  when  the  evidence  shows  a  sale 
of  beer  under  circumstances  which  make  the  sale  unlawful,  it  will 
bo  presumed  in  the  absence  of  any  showing  to  the  contrary  that 
the  beer  so  sold  was  a  malt  or  an  intoxicating  liquor.27  In  Kansas 
it  is  decided  that  beer  is  presumed  to  be  intoxicating  but  that  the 
presumption  that  any  article  called  beer  is  intoxicating  may  be 
rebutted  by  the  evidence.28  And  in  another  case  in  this  state  it 
was  held  to  be  no  error  to  instruct  the  jury  "  that  beer  is  pre- 
sumed to  be  intoxicating  until  the  contrary  is  proved,"  it  being 
declared  that  in  the  absence  of  evidence  to  the  contrary  beer  will 
always  be  presumed  to  be  an  intoxicating  liquor.29  In  Nebraska 
it  has  been  decided  that  the  courts  of  that  state  will  take  judicial 
notice  that  beer  is  an  intoxicant.30  In  a  case  in  North  Dakota 
it  was  held  proper  to  instruct  the  jury,  especially  under  a  statute 
there  in  force,  to  the  effect  that  a  court  is  required  to  take  judicial 
knowledge  that  beer  was  a  malt  liquor  and  was  intoxicating,  and 


26.  United  States  v.  Dueournau,  54 
Fed.  138. 

27.  Stout  v.  State,  96  Ind.  407; 
citing  Myers  v.  State,  93  Ind.  251, 
wherein  the  court  said:  "When, 
therefore,  a  witness  testifies  to  the 
sale  or  giving  away  of  beer  under  cir- 
cumstances which  make  the  sale  or 
giving  away  of  any  intoxicating 
liquor  unlawful,  the  prima  facie  in- 
ference is  that  the  beer  was  of  that 
malted  and  fermented  quality  de- 
clared by  the  statute  to  be  an  in- 
toxicating liquor,  and  the  court  try- 
ing the  case  oug.  t  to  take  judicial 
notice  of  the  inference  which  thus 
arises  from  the  use  of  the  word  '  beer  ' 
in  its  primary  and  general  sense." 
Per   Niblack,    J. 

28.  State  v.  May,  52  Kan.  53,  34 
Pac.  407,  citing  State  v.  Teissedre,  30 
Kan.     477,    2     Pac.     650;     State    v. 


Volmer,  6  Kan.  371 ;  State  v.  Jenkins, 
32  Kan.  477,  4  Pac.  809. 

29.  State  v.  Teissedre,  30  Kan. 
476,  2  Pac.   650. 

30.  Sothman  v.  State,  66  Neb.  302, 
92  N.  W.  303,  citing  Peterson  v. 
State,  63  Neb.  251,  88  N.  W.  549; 
Kerkow  v.  Bauer,  15  Neb.  150,  155, 
18  N.  W.  27. 

No  proof  is  required  that  beer  is 
an  intoxicant  as  this  is  a  fact  well 
known  of  which  the  court  will  take 
judicial  notice.  Peterson  v.  State,  63 
Neb.  251,  88  N.  W.  549. 

The  word  "  beer  "  without  re- 
striction or  qualification,  denotes 
an  intoxicating  malt  liquor,  and  is 
within  the  meaning  of  the  words  in- 
toxicating liquors  which  term  by 
statute  is  defined  as  including  malt, 
spirituous  and  vinous  liquors.  Ker- 
kow v.  Bauer,  15  Neb.  150,  18  N.  W. 
27. 


§   22]       PARTICULAR  LIQUORS— COM I'olXDS  AND  MEDICINES.      23 

that,  if  the  defendant  claimed  that  the  beer  he  sold  was  not  intoxi- 
cating, the  burden  was  upon  him  to  so  show.31  In  a  recent  case  in 
Oregon  it  is  decided  that  a  charge  of  unlawfully  selling  intoxicat- 
ing liquor  is  sustained  by  proof  of  a  sale  of  beer  without  any  fur- 
ther description  or  testimony  as  to  its  intoxicating  qualities.32  In 
a  case  in  Texas  it  is  said  that  it  seems  to  be  well  settled  that  the 
word  "beer"  in  its  ordinary  sense  denotes  an  intoxicating  bever- 
age and  is  within  the  meaning  of  the  words  "  strong  or  spirituous 
liquors  "  and  that  if  it  is  to  be  understood  in  a  restricted  or  quali- 
fied sense  such  as  to  denote  root  beer,  molasses  beer  or  other  similar 
beers  it  would  be  incumbent  upon  the  defendant  to  show  that  such 
is  the  case.33  And  in  Washington  it  is  decided  in  a  recent  case 
that  in  a  prosecution  for  keeping  a  room  for  the  sale  of  intoxicat- 
ing liquors  contrary  to  law  it  is  not  error  to  instruct  the  jury  that 
beer  is  an  intoxicating  liquor.34  And  in  Wisconsin  it  has  been 
decided  that  courts  will  take  judicial  notice  that  "  beer  "  is  a  malt 
and  an  intoxicating  liquor.35 

§  22.  Same  subject  continued — contrary  view. 

In  a  case  in  Georgia  it  is  held  that  the  court  erred  on  the  trial 
of  the  case  in  stating  that  it  would  take  judicial  notice  that  beer 
was  intoxicating,  the  court  declaring  that  as  the  evidence  merely 
showed  that  the  liquor  sold  was  beer  it  could  not  be  assumed  to 
have  been  intoxicating.30     In  Illinois  it  has  been  decided  that  to 

31.  State  v.  Currie,  8  N.  D.  545,  intoxicating.  Dallas  Brewery  v. 
80  N.  W.  475;  Laws  1897,  ch.  65,  Holmes  Bros  (Tex.  Civ.  App.  1908), 
§    io.  112  8.  W.  122. 

32.  State  v.  Carmody,  50  Oreg.  1,  34.  stale  v.  Moran,  4<i  Wash.  596, 
91   Bac.   446.  90  Bac.  1044. 

33.  Maier  v.  State,  2  Tex.  Civ.  App.  35.  Briffitt  v.  State,  58  Wis.  39,  16 
296,  21  S.  W.  974.  N.  W.  39,  46  Am.  Rep.  621. 

In    an    action    on    account    for  36.  Duvall     v.     City     Council     of 

beer  sold   it  has  been   decided  that  Augusta,  1  1 5  Ga.  si:',.  42  S.  E.  265. 

beer  not  being  named   in  the  statute  Courts  will  not  take  judicial  notice 

as    an    intoxicating    liquor   the   court  that    rice    beer    is    intoxicating    and 

will  not  take  judicial  notice  that  it  is  whether  it  is  or  is  not  is  a  question  of 


04      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§   22 

convict  a  person  for  violation  of  a  statute  which  only  prohibits  the 
sale  of  intoxicating  liquors  it  is  not  sufficient  to  show  a  sale  of  beer 
but  as  there  are  several  beers  which  are  not  intoxicating,  it  must 
be  shown  to  be  one  of  the  class  of  liquors  named  in  the  statute.37 
In  Indiana  it  has  been  held  that  the  court  does  not  take  notice 
that  common  brewer's  beer  is  intoxicating,  and  that  before  a  party 
who  has  sold  such  beer  can  be  convicted  of  selling  intoxicating 
liquor,  it  must  be  proved  that  the  beer  sold  was  intoxicating.38  In 
a  case  in  New  York  "  beer  "  is  held  to  be  a  term  which  includes 
both  intoxicating  and  non-intoxicating  liquors  and  which  cannot 
be  said  in  its  ordinary  meaning  necessarily  to  imply  an  intoxi- 
cating drink  and  that  therefore  it  will  not  be  deemed  as  a  matter 
of  law  intoxicating,  and  evidence  of  its  character  must  be  intro- 
duced.39    In  South  Dakota  it  has  been  declared  that  it  being  a 


fact  for  the  jury  in  evidence  adduced 
at  the  trial.  Bell  v.  State,  91  Ga. 
227,  18  S.  E.  288. 

37.  Hansberg  v.  People,  120  111.  21, 
8  N.  E.  21,  60  Am.  Rep.  549. 

38.  Klare  v.  State,  43  Ind.  483. 
Compare  Douglas  v.  State,  21  Ind. 
App.  302,  52  N.  E.  238,  holding  that 
the  court  will  take  judicial  notice 
that  beer  is  a  malt  liquor  and  there- 
fore it  is  intoxicating  within  the 
meaning  of  a  statute  making  malt 
liquors   intoxicating. 

•">!>.  Blatz  v.  Rohrbach,  116  N.  Y. 
450,  22  N.  E.  1049,  6  L.  R.  A.  669. 
The  court  said:  "As  to  strong  and 
spirituous  liquors  the  courts  take  no- 
tice  of  their  intoxicating  character 
and  that  stands  in  lieu  of  evidence. 
But  as  to  the  milder  kinds  of  drink 
evidence  of  their  character  must  be 
introduced.  If  therefore,  on  the  trial, 
upon  proof  of  the  sale  of  beer  with- 
out any  evidence  as  to  its  character  or 
quality,  the  jury  is  to  be  instructed 
that  it  is  of  the  kind  that  intoxicates, 
the  court  assumes  a  fact  not  proven, 


and  the  burden  of  showing  that  it  is 
of  a  non-intoxicating  character  is  put 
on  the  defendant,  as  well  might  a  per- 
son be  convicted  of  grand  larceny  by 
proof  of  the  theft  of  a  watch  or  of 
burglary  in  the  first  degree  by  proof 
of  the  breaking  into  an  inhabited 
dwelling.  But  as  in  the  first  named 
offense  the  value  of  the  watch  is  an 
essential  ingredient  of  the  crime,  and, 
in  the  second,  it  is  necessary  to  prove 
that  the  offense  was  committed  in  the 
night  time,  so,  with  the  sale  of  'beer,' 
it  must  be  shown  that  it  was  of  an 
intoxicating  character,  otherwise  there 
has  been  on  violation  of  the  law. 
The  court  can  indulge  in  no  presump- 
tion in  the  case  except  as  to  the  in- 
nocence of  the  accused,  and  until  it 
appears  by  sufficiency  of  proof  that 
the  particular  beverage  sold  was  of 
an  intoxicating  kind  the  presump- 
tion of  innocence  controls  the  case." 
Per  Brown,  J.  Three  judges  con- 
curred in  the  majority  opinion  by 
Brown,  J.,  and  a  dissenting  opinion 
was  written  in  which  two  judges  con- 


§23]      PARTICULAR  LIQUORS     C<    kIPOl     IDS  AND  MEDICINES.      25 

matter  of  general  knowledge  that  there  are  varieties  of  the  bever- 
age denominated  "  beer  "  and  that  contain  no  malt  and  are  not  in- 
toxicating, the  term  "  beer  "  in  the  absence  of  evidence  to  the  con- 
trary will  not  be  construed  as  importing  an  intoxicating  liquor.40 

§  23.  Same  subject — conclusion. 

It  will  be  seen  from  a  review  of  the  decisions  in  the  two  pre- 
ceding sections  that  the  courts  are  not  in  harmony  upon  the  ques- 
tion whether  judicial  notice  will  be  taken  that  beer  is  an  in- 
toxicating liquor.  While  the  majority  of  the  courts  take  the  af- 
firmative view  that  judicial  notice  will  be  so  taken,  yet  there 
are  several  states  in  which  the  contrary  conclusion  is  reached, 
such  conclusion  being  based  on  the  ground  that  the  term  beer  is  a 
comprehensive  one,  including  both  intoxicating  and  non-intoxi- 
cating beverages  and  that  evidence  should  be  produced  to  show  that 
a  particular  beer  is  intoxicating  in  order  to  establish  its  character 
as  such.  The  weight  of  authority,  however,  seems  to  support  the 
affirmative  view.  And  that  such  a  conclusion  is  the  correct  one 
is  supported  by  sound  reason.  Courts  will  take  judicial  notice  of 
the  meaning  of  words  as  generally  accepted  and  understood.  The 
word  beer  as  ordinarily  used  means  an  intoxicating  malt  liquor. 
For  instance  let  a  person  ask  for  beer  in  a  hotel  or  other  place  in 
which  both  intoxicating  and  non-intoxicating  beers  are  sold  and 

curred,  the  court  thus  standing  four  the    absence    of    a    statute    declaring 

to    three    in    favor    of    reversing    the  that    beer    "  shall    be    deemed    an    in- 

judgment  and  granting  a  new  trial.  toxicating  liquor,  the  mere  statement 

In  another  ruse  in  New  York  it  was  of    the    witnesses    that    they    bought 

held    that     the    word    "beer"    in    its  beer,  without   any  evidence  as  to  the 

ordinary    sense,    denoted    a    beverage  purpose  for  which  it   was  bought,  or 

which  is  intoxicating  and  waa  within  that  it  contained  malt,  or  of  its  effect 

the   meaning   of   the    words   "strong  upon  persons  using  it,  or  of  the  man- 

and    spirituous    liquors"    as    used    in  ner  in  which  it  was  made  is  not   Buf- 

the   statute.      People   v.   Wheeloek,    3  ficient    to    show    that    it    was    intoxi- 

Park.  Cr.  R.   (N.  Y.)   0.  eating,  and  that  a  court  will  not  take 

40.  State  v.  Sioux  Falls  Brew.  Co.,  judicial  notice  thai  a  beer  ^<>  Bold  was 

5  S.  D.  30.  58  N.  W.   1,  26  L.  R.   A.  a    malt   or   intoxicating  liquor." 
138.     In  thi*  ease  it  was  held  that  in 


2G      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§   24 

without  question  he  will  receive  the  intoxicating  malt  liquor.  If 
he  desires  a  beer  which  is  non-intoxicating  such  as  root  beer,  or 
beers  of  a  similar  character,  it  will  be  necessary  for  him  to  specify 
the  particular  beer  meant.  And  this  is  the  meaning  of  the  word 
not  merely  among  those  engaged  in  the  liquor  traffic  but  as  it  is 
commonly  used  and  understood  by  people  generally.  It  would 
therefore  seem  that  the  proper  rule  would  be  for  courts  to  take 
judicial  notice  of  the  fact  that  beer  is  an  intoxicating  liquor  and 
that  when  it  is  claimed  that  the  beer  in  question  is  a  non-in- 
toxicating liquor  the  burden  is  on  the  one  so  claiming  to  establish 
such  fact. 

§  24.  Lager  beer. 

Lager  beer  is  a  malt  liquor,41  of  which  fact  the  courts  will,  it 
is  decided  take  judicial  notice.42  So  it  has  been  declared  that  the 
courts  will  take  judicial  notice  that  lager  beer,  and  any  other 
liquor  made  of  malt,  is  a  malt  liquor.43  But  so  far  as  popular 
usage  goes  "  lager  beer,"  is  not  included  in  the  term  "  spirituous 
liquor  "  the  result  of  distillation.44     So  it  has  been  declared  that 


41.  State  v.  Morehead,  22  R.  I. 
27C.2,  47  Atl.  545;  State  v.  Goyette,  11 
R.  I.  592. 

42.  Watson  v.  State,  55  Ala.  158, 
wherein  the  court  said :  "  Lager  beer 
is  certainly  universally  known  here  as 
a  malt  liquor;  and  it  would  be  as 
vain  and  useless  to  offer  evidence  that 
such  is  its  character,  as  that  whisky 
is  a  distillation  of  grain,  or  wine  of 
fermented  juice  of  the  grape,  or  cider 
the  expressed  juice  of  the  apple. 
The  word  is  now  found  in  the  dic- 
tionaries commonly  used ;  and  from 
its  introduction  into  this  country  as 
a  beverage,  that  it  is  a  malt  liquor  is 
known  wherever  it  is  drunk,  or  is  an 
article  of  commerce.  Courts  cannot 
profess  ignorance  of  the  moaning  of 
words  of  popular  use,  and  about  the 


signification  of  which  no  intelligent 
member  of  the  community  would  hesi- 
tate. Evidence  that  lager  beer  was  a 
malt  liquor  was  not  necessary  to  sup- 
port the  indictment."  Per  Brickell,  J. 
That  lager  beer  is  a  malt  and 
fermented  liquor  is  a  matter  of 
common  knowledge  of  which  the 
courts  will  take  judicial  notice.  Wal- 
ler v.  State,  38  Ark.  656;  State  v. 
Goyette,  11  R.  I.  592. 

43.  Netso  v.  State,  24  Fla.  363,  5 
So.  8,  1  L.  R.  A.  852. 

44.  Sarlls  v.  United  States,  152 
U.  S.  570,  572,  14  Sup.  Ct.  720,  38 
L.  Ed.  566. 

In  a  case  in  North  Carolina  lager 
beer  has  been  hold  to  be  embraced  by 
the  term  spirituous  liquors.  State  v. 
Giersch,  98  N.  C.  720,  4  S.  E.  193. 


§   25J      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.      ^7 

lager  beer,  as  the  court  judicially  knows,  is  a  malt  liquor,  contain- 
ing alcohol  produced  by  fermentation,  and  is  not  within  the  terms 
of  a  local  law  prohibiting  the  sale  of  "  vinous  or  spirituous  liquor  " 
unless  it  is  shown  that  such  liquors  have  been  mixed  with  it.45 

§  25.  Lager  beer — as  an  intoxicating  liquor. 

In  a  case  in  New  York,  it  is  declared  that  lager  beer  falls 
within  the  term  "  intoxicating  liquors  "  if  the  use  of  it  is 
ordinarily  or  commonly  attended  with  entire  or  partial  intoxi- 
cation, and  whether  such  is  the  fact,  is  to  be  decided  by  the  jury 
upon  the  evidence  in  the  case.46  And  in  another  case  in  the  same 
state  it  is  decided  that  the  courts  will  not  take  notice  that  lager 
beer  is  intoxicating  but  that  upon  the  question  whether  lager  beer 
is  included  in  the  words  "  intoxicating  liquors  "  evidence  was  ad- 
missible to  prove  that  it  was  intoxicating  and  that  it  was  proper 
to  charge  the  jury  that  if  upon  the  evidence  they  found  it  to  be 
intoxicating  they  should  convict  the  defendant  of  violating  a 
statute  against  the  sale  of  intoxicating  liquors  on  Sunday.47  And 
where  in  a  given  case  there  was  affirmative  testimony  to  the  effect 
that  a  liquid  which  comtained  not  exceeding  two  per  cent  of 
alcohol  would  not  intoxicate,  and  that  the  identical  bottle  of 
liquid  which  the  accused  sold,  and  upon  the  sale  of  which  the 
question  of  his  guilt  or  innocence  turned,  did  not  contain  more 
than  two  per  cent  of  alcohol,  it  was,  although  there  was  other 
testimony  to  the  effect  that  this  identical  liquid  was  lager  beer, 
held  to  be  erroneous  to  charge  generally  that  all  lager  beer  is  in- 
toxicating.48 But  where  it  is  provided  by  statute  that  lager  beer 
shall  be  deemed  intoxicating,  lager  beer  may  be  described  in  an 


45.  Tinker   v.    State.    90    Ala.    (147,  State   v.   Ihindle,  28   Iowa   512. 
8  So.  855,  holding  also  that  a  state-  46.  People   v.    Zeiger,   6   Park.   Cr. 

ment  in  the  admitted  facts  "that  said  R.    (N.  Y. )    355. 

lager  beer  contained  spirit,  or  alcohol,  4T.   i;:u,   v.   People,  03  N.  Y.  277. 

in   sufficient   quantity   to   intoxicate"  48.  Smith    v.    State,    113    Ga.    758, 

does  not   show   such   admixture.      See  39   S.    K.   294. 


28      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§   26 

indictment  as  intoxicating  liquor  and  cannot  be  proved  not  to  be 
intoxicating.49  And  lager  beer  is  an  intoxicating  liquor  within 
the  meaning  of  a  statute  entitled  "  An  act  to  regulate  the  sale  of 
Intoxicating  Liquors  "  and  which  forbids  the  sale  of  "  ale,  wine, 
rum,  or  other  strong  or  malt  liquors."  50  Again  it  has  been  de- 
cided that  after  the  state  has  proved  that  a  defendant  sold  lager 
beer,  the  state  may  then  prove,  if  it  be  denied  by  the  defendant, 
that  lager  beer  is  an  intoxicating  liquor.51  And  in  a  case  in  South 
Dakota  it  is  said :  "  We  have  no  more  hesitation  in  holding  that 
the  drink  known  as  '  lager  beer '  is  intoxicating  than  we  should 
have  in  holding  that  '  spruce  beet '  is  not,  and  we  should  put  both 
rulings  upon  the  same  ground,  to  wit,  that  such  is  the  common 
undertsanding  resulting  from  common  observation."  52  And  it 
would  seem  that  it  is  a  matter  of  common  knowledge  that  lager 
beer  is  an  intoxicating  liquor  and  that  the  courts  may  properly 
take  judicial  notice  of  the  fact  that  it  is  such. 

§  26.  Brandy. 

The  fact  that  brandy,  which  is  an  alcoholic  liquor,53  is  in- 
toxicating is  one  which  is  a  matter  of  general  knowledge  and  of 
which  the  judicial  cognizance  is  taken  by  the  courts.  So  it  has 
been  declared  that  brandy  is  an  intoxicating  liquor  which  fact  is 
generally  and  commonly  known  and  of  which  the  courts  will  take 

49.  Commonwealth    v.    Anthes,    12  See  also  State  v.  Morehead,  22  R.  I. 

Gray   (Mass.)   29.  272,  47  Atl.  545. 

In    Massachusetts    it   has   been    de-  sl-  State  v-  Volmer,  6  Kan.  371. 

eided    that    under    the    statute    it    is  5"  state   v-    Church,    6    S.    D.    89, 

sufficient  for  the  government  to  prove  ™  N".  W.  143.     Per  Kellam,  J. 

that   the    defendant    kept    lager    beer  r>?"  The    Standard    Dictionary    de- 

with     intent    to     sell     it     unlawfully  fines     brandy     as     "  1.  An     alcoholic 

without   further   proof  that   it   is   in-  liq"°r     distilled     from     wine.       2.  A 

toxicating.     Commonwealth  v.   Snow,  liquor    distilled    from    the    fermented 

133  Mass.   575.  juice  of  other  fruits  than  the  grape: 


as     apple     brandy;      peach     brandy. 

3.  An  imitation  of  cognac  made  from 

other  liquor  or  materials;  as  British 
50.  State   <  .   Rush,    13  R.   I.    198;       brandy.  potato  brandy  „ 


See  Chambcrlayne's  Modern  Law  of 
Evidence.   S   Ton. 


§   27]       PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.      29 

judicial  knowledge  and  that  the  addition  of  the  word  "  black- 
berry "  to  the  word  "brandy"  merely  designates  a  particular 
kind  of  brandy.54  And  in  another  case  it  is  declared  that  the 
court  will  take  notice  from  the  commonly  accepted  definition  of 
the  word  "  brandy  "  that  it  is  a  spiritous  and  intoxicating  liquor, 
whether  it  be  French  brandy,  California  brandy  or  any  other.55 
So  it  has  been  held  that  the  court  will  lake  judicial  notice  of  the 
fact  that  apple  brandy  is  intoxicating,50  and  that  it  is  proper  to 
charge  that  peach  brandy  will  produce  intoxication.57 

§  27.  Brandy  cherries  and  fruit. 

Liquor  will  not  lose  its  character  as  such  by  the  fact  that  fruits, 
for  the  sale  of  which  preserved  in  brandy  no  license  is  required, 
are  placed  in  a  bottle  of  liquor  for  the  purpose  of  evading  the 
law.5S  So  a  conviction  of  selling  liquor  without  a  license  was  held 
to  be  sustained  by  proof  that  the  defendant  sold  brandy  cherries 
in  pint  and  quart  bottles  containing  one-half  their  capacity  of 
intoxicating  liquors.59  And  in  another  case  where  liquor  was  sold 
in  bottles  containing  brandy  cherries  and  peaches  the  court  said: 
"  If  persons  were  allowed  to  escape  the  penalty  of  this  statute  by 
merely  adding  some  other  article  or  ingredient  to  intoxicating 
liquors,  when  made  the  subject  of  traffic,  it  is  obvious  that  the  law 

54.  Fenton  v.  State,  100  Ind.  598.  alcoholic    liquor    which    if    drunk    to 

Judicial     cognizance     will     be  excess      will      produce      intoxication. 

taken    that    brandy    is    intoxicating.  Howell  v.  State.  124  Ga.  098,  52  S.  E. 

Bradley    v.    State,    121    Ga.    201,    48  649. 

S.   E.  981  ;  Dallas  Brewery  v.  Holmes  58.  Rabe    v.    State,    39    Ark.    204, 

Bros.     (Tex.    Civ.    App.    1908),    112  See  Petteway  v.  State,  30  Tex.  Cr.  1!. 

S.  W.  122.  97,  35  S.  W.  646. 

See  Chamberlayne's  Modern  Law  of  59.  Musick  v.  State,  51   Ark.   165, 

Evidence,  §  711.  10  S.  W.  225,  In ►  1 « li i i lt  that   where  in- 

65.  State  v.  Tisdale.  54  Minn.  105,  toxicating  liquor  is  sold  intentionally. 

55  N.  W.  903.  without    a    license,    in    bottles    partly 

56.  Thomas   v.    Commonwealth,   90  filled   with   brandy   cherries,   the   sale 
Va.  92.  17  S.  E.  7SS.  cannot    he    excused    by    showing    that 

57.  Peach  brandy. — In  a   case  in  the  vendor  believed  he  had  the  right 
Georgia  it  was  held  proper  to  charge  to  sell  it  as  brandied  fruit. 

the    jury   that    peach    brandy    is    an 


3()      PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.       [§   28 

could  be  evaded  with  the  greatest  facility  by  any  person  who 
desired  it."  60 

§  28.  Cider. 

Cider  in  its  popular  sense  is  defined  as  the  juice  of  apples, 
either  fermented  or  unfermented  and  it  is  said  that  hence  the 
terms  "  sweet  cider  "  and  "  hard  cider  "  are  in  popular  use  to 
distinguish  between  the  juice  of  the  apple  before  and  after  fer- 
mentation.    In   strictness,   however,   the   court   in  this   case   de- 
clared, the  juice  of  the  apple  before  fermentation  is  simply  apple 
juice  and  it  is  only  by  fermentation  that  it  became  cider;  and, 
that,  when  the  word  cider  is  used  alone  in  law  or  commerce  it  is 
commonly  understood  to  mean  the  fermented  juice  of  apples.61 
Cider  has  been  held  not  to  be  a  spirituous,  vinous  or  malt  liquor.62 
And  in  a  case  in  West  Virginia  it  has  been  decided  that  neither 
cider  nor  crab  cider  is  included  in  the  terms  "  spirituous  liquors, 
wine,  ale,  porter,  beer,  or  any  drink  of  like  nature.63     In  a  case 
in  Pennsylvania,  however,  it  is  decided  that  the  question  whether 
cider  proved  to  have  been  sold,  is  vinous  or  spirituous,  is  not 
a  question  of  law  to  be  decided  by  the   court,   but   a  question 
of  fact  to  be  determined  by  the  jury.64     The  question  whether 

60.  Ryall  v.  State,  78  Ala.  410.  when    subjected   to   distillation,    it   is 

61.  Eureka  Vinegar  Co.  v.  Gazette  capable  of  producing  a  spirituous 
Printing  Co.,  35  Fed.  570,  571.  Per  liquor,  yet  the  ultimate  product  is 
Caldwell,  J.  no  more  like  cider,  than  rum  is  like 

The     Standard    Dictionary    defines  the  juice  of  sugar  cane  from  which  it 

cider    as:     "The    expressed    juice    of  is  manufactured,  neither  is  cider  the 

apples,  used  as  a  beverage,  either  be-  result  of  any  process  of  fermentation 

fore     or     after     fermentation ;     also,  whatever,    nor    is    it    in    any    proper 

sometimes,  the  juice  of  other  fruits;  sense  a  mixture  of  any  liquor  other 

as  pear  cider."  than  water,  which   is  common  to  all 

«ii.  Feldman    v.    Morrison,     1     111.  spirituous  liquors  wines,  ale,  porter, 

App.  460.  beer,  and  all  drinks  of  like  nature." 

<>?"  State  v.  Oliver,  26  W.  Va.  422,  Per  Woods,  J. 

53   Am.   Rep.   79n.      The   court   said:  64.  Commonwealth  v.  Reyburg,  122 

"Cider    is   neither    produced   by    dis-  Pa.   St.  299,  16  Atl.  351,  2  L.  R.  A. 

tillation  nor  by  fermentation,  and  al-  415. 
though    liable    to    fermentation,    and 


6829,30]  PARTICULAR  LIQUOKS— COMPOUNDS  AND  MEDICINES.  31 

cider  is  an  intoxicating  liquor  is  one  of  fact  for  the  jury  to 
determine.05  So  it  has  been  declared  that  whether  cider  after 
process  of  fermentation  is  completed  is  an  intoxicating  liquor 
depends  upon  whether  or  not  such  beverage,  being  drank,  produces 
intoxication  and  that  the  detenu i nation  of  this  question  is  one 
of  fact  for  the  jury.60  And  in  a  prosecution  for  violation  of  a  city 
ordinance  for  selling  a  certain  fluid  called  peach  cider  as  an 
intoxicating  beverage,  it  was  held  to  be  error  to  instruct  the  jury 
as  a  matter  of  law,  that  if  it  contained  six  per  cent  of  alcohol  it 
was  intoxicating  within  the  meaning  of  the  ordinance,  as  this  was 
a  question  of  fact  for  the  jury  to  be  determined  by  them  under 
proper  instructions.67 

§  29.  Cider — hard  cider. 

Hard  cider  is  a  fermented  or  excessively  fermented  liquor  and 
comes  within  the  prohibition  of  a  statute  against  the  sale  of  fer- 
mented liquors.68  Hard  cider  is  also  a  liquor  which  may  be  shown 
by  the  evidence  to  be  intoxicating  and  within  the  meaning  of 
statutes  which  forbid  the  sale  of  "  intoxicating  liquors  "  except 
under  certain  prescribed  conditions.69  Where  a  person  denies 
that  hard  cider  as  sold  by  him  is  intoxicating,  it  devolves  upon 
him  to  remove  the  presumption  of  law  by  evidence.70 

§  30.  Cider — statutes  as  to. 

By  express  provisions  of  the  statutes  in  some  states  cider  has 
been  declared  to  be  an  intoxicating  liquor.71      And  where  cider  is 

65.  Hewitt   v.  People,  89  111.  App.  Co.  v.  Gazette   Printing  Co.,  35  Fed. 

367;  Commonwealth   v.  Chappel,  116  570. 

Mass.  7.  See  Chamberlayne's  Modern  Law  of 

60.  State  v.  Riddle.  54  X.  IT.  370.  Evidence.  S  712. 

07.  City    of    Topeka    v.    Zufall.    40  89.   Hewitt    v.   People,   186  111.  336, 

Kan.   47,    19   Pac.    359,    1    L.   R.   A.  57  N.  E.  1077:  State  v.  Schaefer,    it 

387.  Kan.  00.  24   Pae.  02. 

68.  State  v.   Sehaefer.    II    Kan.   00,  TO.  Stale   v.   Sehaefer.   44    Kan.   00. 

24  Pae.  02:  People  v.  Foster.  04  Midi.  24  Pae.  02. 

715.    31    X.   W.   506:    Eureka    Vinegar  71.  Tn  Maine   it   was  classed   as  an 


32  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  31 

by  statute  made  an  intoxicating  liquor  when  it  contains  more  than 
one  per  cent  of  alcohol  it  is  held  not  to  be  necessary  in  a  prosecution 
by  the  state  to  prove  that  it  does  contain  more  than  that  per  cent.72 
Cider  has  also  been  held  to  be  included  in  the  term  "  intoxicating 
liquors  "  under  a  statute  denning  the  words  "  intoxicating  liquors  " 
as  meaning  alcohol,  ale,  wine,  beer,  spirituous,  vinous,  and  malt 
liquors  and  all  intoxicating  liquors  whatever.73  Where  a  statute 
defines  "  intoxicating  liquors  "  as  including  "  fermented  cider  " 
and  another  section  of  the  statute  provides  that  nothing  in  the 
act  shall  prevent  the  manufacture,  sale  and  use  of  cider,  but  that 
cider  shall  not  be  sold  to  a  habitual  drunkard  the  word  cider  as 
used  in  the  latter  section  has  reference  to  unfermented  cider.74 
Again  where  a  person  is  prosecuted  for  selling  cider  in  violation  of 
a  statute  as  to  the  sale  of  fermented  liquors,  it  has  been  held  to  be 
an  immaterial  inquiry  whether  or  not  the  cider  had  reached  a 
stage  of  fermentation  which  rendered  it  intoxicating.75  By  stat- 
ute in  Vermont  the  sale  of  cider  at  certain  places  was  prohibited 
without  reference  to  whether  it  was  intoxicating  or  not.76 

§  31.  Gin." 

Courts   will   take   judicial   notice   that   gin   is   an  intoxicating 
liquor.     So  it  has  been  decided  that  an  allegation,  in  an  indict- 


intoxicating  liquor  only  "  when  kept 
or  deposited,  with  intent  that  the 
same  shall  be  sold  for  tippling  pur- 
poses."  State  v.  McNamara,  69  Me. 
133;  See  also  State  v.  Roach,  75  Me. 
123;  See  also  Commonwealth  v.  Dean, 
14  Gray  (Mass.)  99,  where  the  stat- 
ute declared  that  "  cider  and  all 
wines  shall  be  considered  intoxicating 
liquors." 

72.  Commonwealth  v.  McGrath, 
185  Mass.  1,  69  N.  E.  340;  citing 
Commonwealth  v.  Brothers,  158  Mass. 
200,  206,  33  X.   E.  386. 

73.  State  v.  Hutchinson,  72  Iowa 
561,   34   N.   W.  421. 


74.  state  v.  Waite,  72  Vt.  10S,  47 
Atl.  397;  followed  in  State  v.  Thorn- 
burn,  75  Vt.   18,  52  Atl.   1039. 

75.  People  v.  Kinney,  124  Mich. 
486,  83  N.  W.  147 ;  citing  and  follow- 
ing People  v.  Adams,  95  Mich.  541, 
55  X.  W.  461. 

7G.  State  v.  Spaulding,  61  Vt.  505, 
17    Atl.    844. 

77.  The  Standard  Dictionary  de- 
fines gin  as:  "An  aromatic  alcoholic 
liquor  distilled  from  various  grains 
and  flavored  with  juniper  berries. 
The  word  gin,  like  rum,  is  sometimes 
used  generieally,  in  a  bad  sense,  for 
alcoholic  liquor." 


§§32,33]  PARTICULAR  LIQUORS— CO-MI »01  NDS  AND  MEDICINES.  33 

ment,  of  an  unlawful  sale  of  intoxicating  liquor,  is  supported  by 
proof  of  such  a  sale  of  gin,  without  proof  that  gin  is  intoxicating.78 
And  it  was  said  by  the  court  in  this  case :  "  Xow  everybody  who 
knows  what  gin  is,  knows  not  only  that  it  is  a  liquor,  but  also  that 
it  is  intoxicating.  And  it  might  as  well  have  been  objected  that 
the  jury  could  not  find  that  gin  was  a  liquor,  without  evidence 
that  it  was  not  a  solid  substance,  as  that  they  could  not  find  that 
it  was  intoxicating,  without  testimony  to  show  it  to  be  bo.  No 
juror  can  be  supposed  to  be  so  ignorant  as  not  to  know  what  gin 
is.  Proof,  therefore,  that  the  defendant  sold  gin  is  proof  that  he 
sold  intoxicating  liquor.79  Whether  a  particular  article  is  gin 
is  held  not  to  be  a  subject  requiring  an  expert,  but  a  matter  of 
general  knowledge  and  any  person  is  competent  to  testify  whether 
such  an  article  is  or  is  not  gin.80 

§  32.  Porter. 

Porter  is  defined  as  a  very  dark  brown  malt  liquor  of  English 
origin,  essentially  the  same  as  ale,81  and  like  ale  it  is  said  in  a 
case  in  New  York  that  it  is  a  liquor  of  which  the  courts  will  take 
notice  of  its  intoxicating  character.82 

§  33.  Whisky — as  a  spirituous  liquor. 

Whisky  is  alcohol  mingled  with  water  and  other  elements,  of 
which  the  alcohol  alone  is  intoxicating.83     The  fact  that  whisky 

T8.  Commonwealth    v.    Peckham,   2  The    Standard    Dictionary    defines 

Gray       (Mass)       ol4;       See      Dallas  whisky    as    "an    alcoholic    liquor   ob- 

Brewery   v.   Holmes  Bros.    (Tex.   Civ.  tained    by    the    distillation    of   a    fer- 

App.  1908),  112  S.  W.  122.  mented   starchy  compound,  usually  a 

Sec  Chamberlayne's  Modern  Law  of  grain." 

Evidence,   g    711.  Whisky     is     alcohol     diluted     with 

T9.  Per   Met  calf.  J.  water  and  mixed  with  other  (dements 

80.  Commonwealth  v.  Timothy,  8  or  ingredients.  Marks  v.  Stale  (Ala. 
Gray    (Mass.)   480.  1909),  4^  So.  864.     Per  Mayfield,  J. 

81.  Standard   Dictionary.  Meaning  of  whisky  as  used  in 

82.  Blatz  v.  Kohil. aeli.  IKi  X.  V.  Pure  Food  Act.— What  IS  THE 
540.  '22  X.  E.  1049,  6  L.   R.  A.  f.tii).  Meaning    OF    thi:   Term    -'Whisky" 

83.  Commonwealth  v.  Morgan,  149  UNDEB  thi:  Pt/be  FOOD  Act,  a\i>  the 
Mass.   314,  21   X.  E.   369.  Proper   Regulations   for   Branding 


34  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  33 

is  a  spirituous  drink  is  said  to  be  one  within  the  common  knowl- 


Vabious  Kinds  of  Whisky  Under 
the  Internal  Revenue  Act? 

Decision   by    President    Taft. 

By  the  Pure  Food  Act  of  June  30, 
1906,  Congress  forbade  the  introduc- 
tion into  interstate  and  foreign  com- 
merce of  adulterated  or  misbranded 
drugs  or  articles  of  food,  with  two 
objects,  one  to  preserve  the  health  of 
the  people,  and  the  other  to  prevent 
their  being  deceived  by  label  or  brand 
as  to  the  real  character  of  drugs  or 
articles  of  food  offered  for  sale. 
Within  the  definitions  of  the  act  po- 
table liquors  are  articles  of  food.  An 
important  controversy  has  arisen  in 
the  execution  and  the  application  of 
the  act  as  to  whether  the  branding 
of  certain  potable  liquors  with  the 
name  "  whisky "  is  a  misbranding 
within  the  act.  All  distilled  spirits 
pay,  under  the  internal-revenue  laws, 
a  heavy  tax.  The  tax  is  measured 
by  a  certain  rate  per  proof  gallon. 
Theoretically  pure  ethyl  alcohol  is 
200°  proof.  A  proof  gallon  of  dis- 
tilled spirits  is  half  water  and  half 
alcohol,  or  a  gallon  of  100°  proof. 
Potable  strength  varies  from  90°  to 
102°  or  103°.  Distilled  spirits  are 
manufactured  under  the  close  super- 
vision of  revenue  officers  and  the 
brands  which  are  placed  upon  the 
packages  containing  the  spirits  after 
manufacture  are  placed  there  under 
regulations  of  the  Internal  Revenue 
Bureau.  It  is,  of  course,  of  the  high- 
importance  that  the  internal- 
revenue  law  and  the  pure-food  law 
should  be  enforced  in  such  a  way  as 
to  accomplish  the  purposes  of  both. 

In  Internal  Revenue  Order  No.  723 
(April,  l!i()7)  directions  were  given 
as  to  how  certain  distilled  spirits 
should  be  branded.  The  effect  of  this 
order  was  to  deny  the  right  to  the  use 
of   the  brand   "  whisky "  to   any   dis- 


tilled liquor  except  that  which  is 
known  to  the  trade  as  "  straight 
whisky  "  and  to  require  the  branding 
of  several  kinds  of  liquors  distilled 
from  grain  as  "  imitation  whisky." 
The  pure-food  act  does  not  mention 
the  term  "  whisky ;  "  it  does  not  au- 
thorize any  officers  to  fix  a  standard 
in  respect  to  any  article  of  food  or 
liquor.  It  therefore  leaves  the  ques- 
tion of  what  liquor  may  be  properly 
branded  as  whisky  to  those  who  have 
to  execute  the  pure-food  law  and 
the  internal-revenue-law,  subject,  of 
course,  to  a  review  of  the  correctness 
of  their  action  by  courts  whenever  a 
case  between  parties  litigant,  prop- 
erly within  the  jurisdiction  of  such 
courts  shall  arise.  Attorney-General 
Bonaparte  was  asked  to  pass  upon 
the  question  of  what  properly  might 
be  included  under  the  brand  of  whisky 
within  the  pure-food  law,  and  ren- 
dered two  decisions  in  which  he  in 
effect  limited  the  proper  use  of  the 
brand  to  what  is  known  in  the  trade 
as  "  straight "  whisky.  So  far  as 
appears  from  Mr.  Bonaparte's  opin- 
ions, he  accepted  a  definition  of 
whisky  from  a  dictionary  or  ency- 
clopedia, and,  in  forming  and  express- 
ing his  opinion,  he  had  not  the  benefit 
of  any  evidence  as  to  the  meaning  or 
scope  of  the  term  acquired  from  man- 
ufacturers, dealers,  or  consumers  in 
the  trade.  Internal  Revenue  Order 
723  was  founded  on  Mr.  Bonaparte's 
opinions. 

A  petition  was  filed  in  April  last 
by  a  large  number  of  distillers  whose 
interests  were  affected,  asking  that 
the  issue  passed  upon  by  Mr.  Bona- 
parte and  confirmed  by  Mr.  Roosevelt 
in  Internal  Revenue  Order  No.  723 
be  reheard  on  the  ground  that  the 
meaning  of  the  term  "  whisky  "  is  one 
of  fact,  and  is  to  be  properly  determ- 


£  33]    PARTICULAE   LIQ1  DS  AND  MEDICINES.  :;:, 

edge  of  all  men  and  is  one  of  which  the  courts  will  take  judicial 


ined  only  after  consideration  of  com- 
petent evidence  drawn  from  those  fa- 
miliar with  the  trade  in  which  liq- 
uors are  manufactured  and  Bold.  The 
rehearing  was  granted,  and  the  mat- 
ter was  referred  to  Bon.  Lloyd 
Bowers.  Solicitor-General,  to  deter- 
mine upon  evidence  to  be  submitted  hy 
all   parties  in  interest: 

1.  What  was  the  article  called 
"  whisky  "  as  known  ( 1  )  to  the  man- 
ufacturers, (2)  to  the  trade,  and  (3) 
to  the  consumers  at  and  prior  to 
the  date  of  the  passage  of  the  pure- 
food   law  ? 

2.  What  did  the  term  "  whisky " 
include? 

3.  Was  there  included  in  the  term 
"  whisky "  any  maximum  or  mini- 
mum of  congeneric  substances  as  nec- 
essary in  order  that  distilled  spirits 
should  be  properly  designated  whisky? 

4.  Was  there  any  abuse  in  the  ap- 
plication of  the  term  "  whisky  "  to 
articles  not  properly  falling  within 
the  definition  of  that  term  at  and 
prior  to  the  passage  of  the  pure-food 
law,  which  it  was  the  intention  of 
Congress  to  correct  by  the  provisions 
of  that  act? 

5.  Is  the  term  "  whisky  "  as  a  drug 
applicable  to  a  different  product  than 
whisky  as  a  beverage?  If  so,  in  what 
particulars? 

A  very  full  hearing  was  had  he- 
fore  the  Solicitor-General  and  a  large 
amount  of  evidence  was  taken,  mak- 
ing a  record  of  more  than  1,200 
printed  pages.  The  answers  of  the 
Solicitor-General  to  the  questions 
were  detailed  and  exact.  I  shall  not 
sel  them  out.  It  is  sufficienl  to  say 
that  he  found  from  the  evidence  that 
whisky,  as  a  term  of  the  trade  for 
many  years,  included  much  more  than 
"straight"  whisky:  that  it  included 
"rectified"      whisky.      "redistilled" 


whisky,  and  all  distillates  of  grain  re- 

duced  by  water  to  potable  strength 
and  containing  a  sufficienl  trace  of 
fusel  oil  or  the  congeneric  substances 

accompanying  grain  distillation  to 
give  a  distinctive  whisky  flavor  to 
the  liquor:  and  this  whether  or  not 
colored  by  burnt  sugar  or  other  harm- 
less flavoring  and  coloring  matter. 
But  he  excluded  from  the  proper 
meaning  and  scope  of  the  term 
"  whisky  "  that  product  of  continuous 
distillation  called  "neutral  spirits," 
though  reduced  to  potable  strength 
and  colored  and  flavored  by  burnt  su- 
gar, on  the  ground  that  in  such  pro- 
duct there  was  not  enough  of  the 
fusel  oil  or  congeneric  substances  to 
give  to  the  liquor  the  distinctive 
flavor  of  whisky.  He  found  further 
that  the  mixture  of  neutral  spirits 
with  whisky,  if  a  sufficient  quantity 
of  fusel  oil  or  congeneric  substances 
remained  to  retain  the  whisky  flavor, 
was  not  an  adulteration  and  did  not 
make   it  other  than  whisky. 

Exceptions  were  taken  by  all  par- 
ties to  these  findings  of  the  Solicitor- 
General,  and  the  whole  record  of  the 
evidence  has  been  brought  before  me 
for  consideration  and  decision.  I  in- 
vile. 1  the  Attorney-General  and  the 
Secretary  of  Agriculture  to  sit  with 
me  and  hear  the  arguments. 
of  the  importance  of  the  case,  I  have 
thought  it  necessary  to  read  with 
care  the  entire  evidence  adduced. 
The  Solicitor-General  has  rendered  an 
opinion  to  justify  his  findings  of 
greal  ability  and  acumen:  and  I 
reach  a  somewhat  different  conclusion 
from  him  with  much  reluctance.  But 
I  am  led  to  do  so  by  a  very  clear  con- 
viction as  to  what  the  evidence  s] 

Whisky  for  more  than  one  hundred 
years  has  been  the  mosl  general  and 
comprehensive  term  applied  to  liquor 


36  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  33 

notice  and  which  juries  are  permitted  to  find  without  specific  proof 


distilled  from  grain.  It  is  derived 
from  the  Irish  word  "  Usquebaugh," 
and  for  more  than  a  century  has  been 
used  in  Ireland,  Scotland,  England, 
and  in  this  country  to  mean  ardent 
spirits  distilled  from  grain  reduced  to 
potable  strength.  Its  flavor  and  color 
have  varied  with  the  changes  in  the 
process  of  its  manufacture  in  the 
United  States,  Ireland,  Scotland,  and 
England,  and  have  been  varied  by  the 
introduction  into  it  of  fruit  juice  and 
burnt  sugar  and  other  substances.  It 
was  manufactured  originally  in  what 
was  called  a  "  pot  still "  by  the  distil- 
lation of  wort  or  beer  fermented  from 
grain.  It  was  composed  of  about 
equal  parts  of  water  and  ethyl  al- 
cohol and  certain  substances  now 
called  congeneric  substances  which 
united  were  known  as  fusel  oil;  and 
when  the  distillate  was  first  produced 
the  so-called  fusel  oil  gave  to  the 
liquor  a  very  disagreeable  odor  and  a 
very  raw  taste.  The  efforts  of  those 
engaged  in  the  manufacture  were  di- 
rected toward  the  reduction  of  the 
amount  of  fusel  oil  in  the  product  and 
toward  the  elimination  of  the  disa- 
greeable odor  and  taste  produced  by 
it.  This  was  effected  for  a  great 
many  years  by  passing  the  distilled 
spirit  through  leaching  tubs  of  char- 
coal, which  tended  to  purify  it  and  re- 
duce the  amount  of  fusel  oil,  and  sub- 
sequently rectification  was  followed  by 
another  step — i.  e.,  redistillation — 
and  at  all  times  by  the  introduction 
of  fruit  essences  or  burnt  sugar. 
Burnt  sugar  is  used  in  Scotch  whisky 
as  well  as  in  American  whisky, 
though  not  to  the  same  extent  or  in 
the  same  proportion.  Between  1850 
and  18<i0  in  this  country  a  very 
large  and  profitable  business  began 
in  certain  well-known  brands  of 
whisky,  which  were  purified  by  leach- 


ing tubs  and  were  colored  and  flav- 
ored by  the  use  of  caramel  or  burnt 
sugar.  Though  there  was  some  Amer- 
ican white  whisky,  the  conventional 
amber  or  brown  color  and  whisky 
flavor  in  America  was  that  produced 
by  a  mixture  of  the  raw  whisky  with 
its  fusel  oil  reduced  as  much  as  pos- 
sible, and  of  burnt  sugar  or  caramel. 

Some  time  during  the  Civil  War  it 
was  discovered  that  if  raw  whisky 
as  it  came  from  the  still,  unrectified 
and  without  redistillation,  and  thus 
containing  from  one-half  to  one-sixth 
of  1  per  cent,  of  fusel  oil,  was  kept 
in  oak  barrels,  the  inside  of  the  staves 
of  which  were  charred,  the  tannic 
acid  of  the  charrel  oak  which  found 
its  way  from  the  wood  into  the  dis- 
tilled spirits  would  color  the  raw 
white  whisky  to  the  conventional 
color  of  American  whisky,  and  after 
some  years  would  eliminate  alto- 
gether the  raw  taste  and  the  bad 
odor  given  the  liquor  by  the  fusel  oil 
and  would  leave  a  smooth,  delicate 
aroma,  making  the  whisky  exceed- 
ingly palatable  without  the  use  of 
any  additional  flavoring  or  coloring. 
The  whisky  thus  made  by  one  distil- 
lation and  by  ageing  in  charred  oak 
barrels  came  to  be  known  as 
"  straight  "  whisky,  and  to  those  who 
were  good  judges  came  to  be  regarded 
as  the  best  and  purest  whisky. 

Meantime  the  other  and  shorter 
method  of  making  whisky  grew 
greatly  in  its  use,  and  the  amount 
of  distilled  spirits  made  from  grain 
either  by  rectifying  or  by  redistilling, 
which  were  reduced  to  potable 
strength  and  given  a  conventional 
flavor  of  whisky  by  the  use  of  burnt 
sugar  and  other  essences,  far  ex- 
ceeded that  of  the  so-called  "  straight 
whiskies;"  and  as  according  to  this 
method   a   potable,   pleasant   beverage 


§  33]    PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.  37 

thereof  being  adduced.84     So  in  a  case  in  Florida  it  is  said  of 


could  be  made  in  a  short  time  with- 
out the  ageing  in  wood  and  without 
the  loss  of  interest  on  the  capital 
involved  in  holding  the  product  for 
two  or  three  years  while  it  acquired 
color  and  flavor,  it  could  be  sold,  of 
course,  much  cheaper.  It  was  made 
originally  by  distilling  a  product  at 
a  proof  of  from  140°  to  160°,  called 
"  high  wines,"  by  taking  these  high 
wines  to  a  rectifying  house  and  there 
passing  them  through  leaching  tubs 
to  reduce  as  far  as  possible  the  fusel 
oil,  and  then  coloring  and  flavoring 
the  whisky  with  burnt  sugar;  or  by 
another  step  of  purification,  which 
was  a  redistillation  of  the  high  wines, 
reducing  the  fusel  oil  still  further, 
and  then  the  coloring  and  flavoring 
by  caramel.  The  product  of  this  sys- 
tem was  known  as  "  finished  whis- 
ky ;  "  whereas  the  raw  spirits  deliv- 
ered  were  known   as   "  high  wines." 

Subsequently,  about  1872  or  a  little 
later,  a  patent  still  came  into  use  by 
which  it  was  possible  through  one 
process  of  continuous  distillation  to 
clarify  the  spirits  somewhat  more 
completely  of  the  fusel  oil  than  the 
old  system  of  rectifying  by  leaching 
tubs,  or  even  by  redistillation  as  a 
separate  step;  and  the  result  of  this 
continuous  distillation  was  the  pro- 
duction of  what  was  known,  and  is 
known  now,  as  "  neutral  spirits,"  at  a 
proof  varying  from  100°  to  188°. 
They  still  had  a  small  trace  of  the 
congeneric  substances  that  go  to  make 
up  what  is  known  as  "  fusel  oil," 
but  not  enough  substantial}'  to  affect 
the  flavor.  The  rectifiers,  who  pay  a 
tax  as  such  under  the  internal-rev- 
enue law,  then  began  to  use  neutral 
spirits  as  they  had  used  high  wines 
before,  to  color  them  witli  burnt  su- 
gar, and  to  offer  them  as  whisky. 
The    difference    between    the    whisky 


made  from  high  wines  and  the  whisky 
made  from  neutral  spirits  was  Die  dif- 
ference in  the  traces  of  fusel  oil,  being 
less  in  the  latter  than  in  the  former, 
but,  so  far  as  I  am  able  to  determine 
from  the  evidence,  there  was  only  a 
difference  in  slight  degree.  The  im- 
portance of  the  fusel  oil  in  the  pro- 
duct ready  for  the  drinker  can  be 
judged  by  the  fact  that  it  varies  in 
straight  whisky  from  one-half  of  1 
per  cent,  but  that  in  rectified  and  re- 
distilled whisky  it  is  considerably 
less,  and  in  the  presence  of  burnt  su- 
gar it  can  hardly  be  perceptible  to 
the  taste. 

All  these  products — straight  whisky, 
rectified  spirits  whisky,  redistilled 
spirits  whisky,  and  neutral  spirits 
whisky — when  reduced  by  water  to  a 
hundred  proof  or  less  and  sold  upon 
the  market  as  beverages  were  known 
to  the  trade  and  to  the  customers  as 
"whiskies;"  the  difference  between 
straight  whisky  and  the  neutral  spir- 
its whisky,  which  now  constitutes  and 
for  thirty  years  last  passed  has  con- 
stituted, perhaps  75  per  cent,  of  all 
the  whisky  sold,  was  well  understood, 
and  the  difference  between  the  two 
was  seen  in  the  difference  in  price 
which  each  commanded  in  the  market. 

It  was  supposed  for  a  long  time 
that  by  the  ageing  of  straight  whisky 
in  the  charred  wood  a  chemical  change 
took  place  which  rid  the  liquor  of 
fusel  oil  and  thus  destroyed  the  un- 
pleasant taste  and  odor.     It  now  ap- 


84.  Freiberg  v.  State.  94  Ala.  91, 
10  So.  703;  Netao  v.  State.  24  Fla. 
363,  .".  So.  S.  1  L.  R.  A.  825;  Fears  v. 
State,  12.-.  Cm.  740,  54  S.  E.  G61 ; 
Hodge  v.  State,  116  Ga.  852,  43  S.  E. 
2."..-,. 

See  Chamberlayne's  Modern  Law  of 
Evidence,  §   711. 


38  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  33 

whisky  that  every  person  of  ordinary  intelligence  knows  it  to  be 


pears  by  chemical  analysis  that  this 
is  untrue;  that  the  effect  of  the  age- 
ing is  only  to  dissipate  the  odor,  and 
to  modify  the  raw,  unpleasant  flavor, 
but  to  leave  the  fusel  oil  still  in  the 
straight  whisky.  Fusel  oil  is  known 
to  be  poisonous  and  injurious.  In  the 
small  quantity  in  the  straight  whisky 
it  probably  does  no  harm.  But  how- 
ever this  may  be,  it  is  certain  that 
in  the  whisky  made  of  neutral  spirits 
there  is  less  fusel  oil  and  less  of  the 
poison  arising  therefrom  than  there 
is  in  the  straight  whisky.  The  ques- 
tion, therefore,  is  not  here  one  of 
health.  It  is  only  one  of  correct 
branding  to  prevent  deceit  of  the 
public  as  to  what  it  is  buying. 

After  an  examination  of  all  the  evi- 
dence it  seems  to  me  overwhelmingly 
established  that  for  a  hundred  years 
the  term  "  whisky  "  in  the  trade  and 
among  the  customers  has  included  all 
potable  liquor  distilled  from  grain; 
that  the  straight  whisky  is,  as  com- 
pared with  the  whisky  made  by  recti- 
fication or  redistillation  and  flavoring 
and  coloring  matter,  a  subsequent  im- 
provement, and  that  therefore  it  is  a 
perversion  of  the  Pure  Food  Act  to  at- 
tempt now  to  limit  the  meaning  of 
the  term  "whisky"  to  that  which 
modern  manufacture  and  taste  have 
made    the    most    desirable    variety. 

Exactly  the  same  question  has 
arisen  in  England  and  has  been  de- 
termined by  a  Royal  Commission  of 
eminent  lawyers  and  scientific  men  in 
the  same  way.  That  commission  held, 
after  a  full  investigation,  that  neu- 
tral, or  velvet  spirits  as  they  are 
there  more  frequently  called,  made 
by  a  patent  still  from  grain  was 
whisky  when  reduced  to  potable 
strength.  The  same  conclusion  is 
shown  to  have  been  in  the  mind  of 
Congress    in    1882    when    a    question 


arose  in  the  House  of  Representa- 
tives, as  between  the  method  of  taxa- 
tion of  straight  whisky  and  of  that 
liquor  which  was  the  product  of  con- 
tinuous distillation.  Both  were  de- 
nominated whisky  in  the  discussion. 
Congress  legislated  with  reference  to 
the  distinction  between  the  two  in 
the  method  of  manufacture  and  prep- 
aration for  use  as  a  beverage,  which 
was  admitted  on  all  sides  to  exist, 
but  no  question  was  made  as  to  the 
proper  application  of  the  term 
"  whisky  "  to  both  kinds  of  liquor. 

With  deference  to  the  very  able  con- 
sideration  of   this  question   made  by 
Doctor  Wiley  and  other  distinguished 
chemists,    I    think    the    fundamental 
error  in  all  conclusions  differing  from 
this   is   one   of   fact   as   to   what   the 
name    of    whisky    actually    has     in- 
cluded   for    the    last    hundred   years; 
and  while  Mr.  Bowers,  the  Solicitor- 
General,  greatly  enlarged  in  his  defi- 
nition   the    character    and    scope    of 
the  term  "  whisky  "  beyond  theirs,  he 
fell  into  what  seems  to  me  to  be  the 
error  of  making  too  nice  a  distinction 
in    reference   to    the   amount   of   con- 
generic substances  or  traces   of  fusel 
oil  required  to  constitute  whisky  for 
practical    purposes    when    the    flavor 
and  color  of  all  whiskies  but  straight 
whiskies    have    been    chiefly    that    of 
ethyl    alcohol    and    burnt    sugar.      If 
high  wines  at  from  140°  to  100°  when 
reduced  to  potable  strength  and  con- 
taining a  very  small  quantity  of  fusel 
oil   and   flavored   by   burnt   sugar   are 
whisky,    as    he    has    found,   then    the 
lucre  improvement  in  the  process  by 
continuous  distillation  so  as  to  give  a 
product  of  from   100°   to   188°   proof 
and   still    further   to   reduce   its   fusel 
oil,  is  to  not  change  its  whole  nature 
or     to     make     what     was     genuine 
"  whisky "    "  imitation    whisky,"    be- 


§  33]    PARTICULAR  LIQUORS— COMPOUNDS  AM)  MEDICINES.  39 

a  spirituous  liquor  as  well  as  be  knows  the  meaning  of  any  other 


cause  of  a  slightly  reduced  trace  of 
one  ingredient.  The  distinction  is 
too  impracticable,  in  my  judgment, 
for  the  execution  of  the  law.  It  may 
be  that  the  public  were  not  fully  or 
exactly  advised  as  to  the  change  in  the 
process  when  it  was  made,  but  the 
change  in  the  process  was  slight  and 
effected  economy  in  the  production 
rather  than  the  flavor  of  the  product ; 
and  if  the  public  detected  no  differ- 
ence in  flavor  in  the  product  of  the 
improved  process,  as  they  did  not,  but 
continued  for  forty  years  to  regard  it 
as  the  same,  there  was  no  deceit  in 
continuing  to  call  whisky  that  which 
was  thus  merely  improved  in  its  man- 
ufacture without  substantial  change 
of  composition  or  flavor. 

It  is  undoubtedly  true  that  the  liq- 
uor trade  has  been  disgracefully  full 
of  frauds  upon  the  public  by  false 
labels;  but  these  frauds  did  not  con- 
sist in  palming  off  something  which 
was  not  whisky  as  whisky,  but  in 
palming  one  kind  of  whisky  as  an- 
other and  better  kind  of  whisky, 
^'liisky  made  of  rectified  or  redis- 
tilled or  neutral  spirits  and  given  a 
color  and  flavor  by  burnt  sugar,  made 
in  a  few  days,  was  often  branded  as 
Bourbon  or  Rye  straight  whisky. 
The  way  to  remedy  this  evil  is  not  to 
attempt  to  change  the  meaning  and 
scope  of  the  term  "  whisky."  accorded 
to  it  for  one  hundred  years,  and  nar- 
row it  to  include  only  straight 
whisky:  and  there  is  in. thing  in  the 
Pure  Food  Law  that  warrants  the 
inference  of  such  an  intention  by 
Congress.  The  way  to  do  it  is  to 
require  a  branding  in  connection  with 
the  use  of  the  term  "whisky  *'  which 
will  indicate  just  what  kind  of  whisky 
the  package  contains.  Tims,  straighl 
whiskies  may  he  branded  as  such  and 
may   be   accompanied   by    the    legend 


"  aged  in  wood."  Whisky  made  from 
rectified,  redistilled,  or  neutral  spir- 
its may  he  branded  as  whisky  made 
from  rectified,  redistilled,  or  neutral 
spirits,  as  the  case  may  be. 

With  this  result,  the  quest  ion  ari-e,- 
what  ought  the  order  to  be  so  that 
the  purpose  of  the  Pure  Food  Law  can 
he  carried  out.  The  term  "straight 
whisky"  is  well  understood  in  the 
trade  and  well  understood  by  consum- 
ers. There  is  no  reason,  therefore, 
why  those  who  make  straight  whisky 
may  not  have  the  brand  upon  their 
barrels  of  straight  whisky,  with 
further  descriptive  terms  as  "  Bour- 
bon "  or  "Rye"  whisky,  as  the  com- 
position of  the  grain  used  may  jus- 
tify, and  they  may  properly  add,  if 
they  choose,  that  it  is  aged  in  the 
wood. 

Those  who  make  whisky  of  "  recti- 
fied," "  redistilled,"  or  "  neutral  " 
spirits  can  not  complain  if,  in  order 
to  prevent  further  frauds,  they  are 
required  to  use  a  brand  which  shall 
show  exactly  the  kind  of  whisky 
they  are  selling.  For  that  reason  it 
seems  to  me  fair  to  require  them  to 
brand  their  product  as  "  whisky  made 
from  rectified  spirits,"  or  "whisky 
made  from  redistilled  spirits,"  or 
"  whisky  made  from  neutral  spirits," 
as  the  case  may  he;  and  if  aged  in 
the  wood,  as  sometimes  is  the  case 
with  this  class  of  whiskies,  they  may 
add  this  fact. 

A  greal  deal  of  the  liquor  sold  is 
a  mixture  of  straight  whisky  with 
whisky  made  from  neutral  spirits. 
Now.  the  question  is  whether  this 
oughl  to  be  regarded  as  a  compound 
or  a  blend.  The  Pure  Food  Law 
provides  that  "in  the  case  of  articles 
labeled,  branded,  or  tagged  so  as  to 
plainly  indicate  that  they  are  com- 
pounds,   imitations,    or    blends,"    the 


40  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  33 

ordinary  word,  and  that  courts  will  take  judicial  notice  that  it  is 


such.85 

term  "  blend "  shall  be  construed  to 
mean  a  mixture  of  like  substances, 
not  excluding  harmless  coloring  or 
flavoring  ingredients  used  for  the  pur- 
pose of  coloring  and  flavoring  only. 
It  seems  to  me  that  straight  whisky 
and  whisky  made  from  neutral  spirits, 
each  with  more  than  ninety-nine  and 
a  half  per  cent  ethyl  alcohol  and 
water,  and  with  less  than  half  of  one 
per  cent  of  fusel  oil,  are  clearly  a  mix- 
ture of  like  substances,  and  that  while 
the  latter  may  have  and  often  does 
have  burnt  sugar  or  caramel  to  flavor 
and  color  it,  such  coloring  and  flavor- 
ing ingredients  may  be  regarded 
as  for  flavor  and  coloring  only, 
because  the  use  of  burnt  sugar  to 
color  and  flavor  spirits  as  whisky 
is  much  older  than  the  coloring 
and  flavoring  by  the  tannin  of 
the  charred  bark.  Therefore,  where 
straight  whisky  and  whisky  made 
from  neutral  spirits  are  mixed,  it  is 
proper  to  call  them  a  blend  of  straight 
whisky  and  whisky  made  from  neutral 
spirits.  This  is  also  in  accord  with 
the  decision  of  the  British  Royal 
Commission  in  the  case  which  I  have 
cited  upon  a  similar  issue. 

Canadian  Club  whisky  is  a  blend 
of  whisky  made  from  neutral  spirits 
and  of  straight  whisky  aged  in  the 
wood,  and  its  owners  and  vendors  are 
entitled  to  brand  it  as  such. 

Neutral  spirits  made  from  molasses 
and  reduced  to  potable  strength  has 
sometimes  been  called  whisky,  but  not 
for  a  sufficient  length  of  time  or  under 
circumstances  justifying  the  conclu- 
sion that  it  is  a  proper  trade  name. 
The  distillate  from  molasses  used  for 
drinking  has  commonly  been  known 
as  rum.  The  use  of  whisky  for  it  is  a 
misbranding. 

There  are  other  kinds  of  liquor  in 


respect  to  which  a  decision  is  invoked, 
but  it  is  thought  that  the  principles 
above  stated,  and  the  directions  above 
given  in  specific  cases,  will  furnish  a 
clear  precedent  for  all  other  cases. 

By  such  an  order  as  this  decision 
indicates  the  public  will  be  made  to 
know  exactly  the  kind  of  whisky  they 
buy  and  drink.  If  they  desire 
sraight  whisky,  then  they  can  secure 
it  by  purchasing  what  is  branded 
"  straight  whisky."  If  they  are  will- 
ing to  drink  whisky  made  of  neutral 
spirits,  then  they  can  buy  it  under  a 
brand  showing  it;  and  if  they  are 
content  with  a  blend  of  flavors  made 
by  the  mixture  of  straight  whisky 
and  whisky  made  of  neutral  spirits, 
the  brand  of  the  blend  upon  the  pack- 
age will  enable  them  to  buy  and 
drink  that  which  they  desire.  This 
was  the  intent  of  the  act.  It  in- 
jures no  man's  lawful  business,  be- 
cause it  only  insists  upon  the  state- 
ment of  the  truth  in  the  label.  If 
those  who  manufacture  whisky  made 
of  neutral  spirits,  and  wish  to  call 
it  "whisky"  without  explanatory 
phrase,  complain  because  the  addition 
of  "  neutral  spirits  "  in  the  label  takes 
away  some  of  their  trade,  they  are 
without  a  just  ground  because  they 
lose  their  trade  merely  from  a  state- 
ment of  the  fact.  The  straight- 
whisky  men  are  relieved  from  all  fu- 
ture attempt  to  pass  off  neutral-spirits 
whisky  as  straight  whisky.  More 
than  this,  if  straight  whisky  or  any 
other  kind  of  whisky  is  aged  in  the 
wood,  the  fact  may  be  branded  on  the 
package,  and  this  claim  to  public 
favor  may  truthfully  be  put  forth. 
Thus  the  purpose  of  the   Pure   Food 


85.  Frese  v.   State,  23  Fla.  267,  2 
So.   1. 


§  34]    PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.         41 

§  34.  Whisky — as  an  intoxicating  liquor. 

The  intoxicating  quality  of  such  beverages  as  whisky  is 
judicially  noticed  and  no  proof  is  required  to  stamp  them  with 
this  character.80  So  in  a  case  in  which  this  question  arose  the 
court  said:  "This  court  therefore  will  neither  stultify  itself  nor 
impeach  its  own  veracity  by  telling  you  that  it  has  not  judicial 
knowledge  that  the  liquor  commonly  known  as  "  whisky  "  is  an 
intoxicating  liquor  or  that  the  drink  commonly  called  a  whisky 
cocktail  is  an  intoxicating  drink.  On  the  contrary  the  court 
assumes  judicial  knowledge  that  both  are  intoxicating."  87  So  in 
a  prosecution  for  selling  whisky  to  a  minor  it  was  held  proper  to 
instruct  the  jury  that  whisky  is  an  intoxicating  liquor,  without 
proof  of  it,  it  being  declared  to  be  a  fact  of  common  intelligence 
which  need  no  proof.88  So  proof  of  an  unlawful  sale  of  whisky, 
on  the  trial  of  a  defendant  indicted  for  unlawfully  selling  "  intox- 
icating  liquor "    is   sufficient   to   support    such   averment   of  the 


Law  is  fully  accomplished  in  respect 
of  misbranding  and  truthful  brand- 
ing. 

This  opinion  will  be  certified  to  the 
Secretary  of  the  Treasury,  the  Sec- 
retary of  Agriculture,  and  the  Secre- 
tary of  Commerce  and  Labor  to  pre- 
pare the  regulation  in  accordance 
herewith,  under  the  Pure  Food  Law; 
and  to  the  Secretary  of  the  Treasury 
and  the  Commissioner  of  Internal 
Revenue  to  prepare  the  proper  regu- 
lation under  the  Internal  Revenue 
Law. 

William   II.  Taft. 
The     White    House.     December    27, 
1909. 

SG.  Florida.  Netso  v.  State,  24 
Fla.  363,  5  So.  8,  1  L.  R.  A.  825. 

Georgie.  Bradley  v.  State,  121  Ga. 
201,  48  S.  E.  081. 

Indiana.  Schlicht  v.  State,  56  Ind. 
173:  Eagan  v.  State,  53  Ind.  162; 
Carmon  v.  State,   18   Ind.  450. 


Nebraska.  Peterson  v.  State,  63 
Neb.  251,  88  N.  W.  540. 

Texas.  Dallas  Brewery  v.  Holmes 
Bros.  (Civ.  App.  1008),  112  S.  W. 
122. 

The  courts  will  take  judicial  notice 
of  the  meaning  of  words,  which,  from 
continuous  use,  have  acquired  a  defi- 
nite signification,  generally,  if  not  un- 
iversally known,  and  they  will  take 
judicial  cognizance  of  the  fact  that 
whisky  is  an  intoxicating  liquor. 
state  v.  Murphy,  23  Nev.  300,  48 
Pac.  628. 

See  Chamberlayne's  Modern  Law  of 
Evidence,    §    711. 

Corn  whisky. — It  is  not  error  for 
the  court  to  charge  that  corn  whisky 
is  intoxicating.  Fears  v.  State,  125 
Ga.  740.  :,i  s.  E.  661. 

87.  United  States  v.  Ash,  75  Fed. 
651,   652.      Per  Delaney,  J. 

88-  Edtrar  v.  State.  37  Ark.  210. 


42  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  35 

indictment.89  And  an  information  for  a  violation  of  the  liquor 
law  which  charges  a  sale  of  whisky,  without  averting  that  it  is 
intoxicating  liquor,  is  good,  as  the  court  judicially  knows  that 
whisky  is  intoxicating.90  Again  an  indictment  which  charged 
the  defendant  with  selling  "  an  intoxicating  liquor,  to  wit :  one 
quart  of  whisky  "  was  held  sufficient  although  it  did  not  state  in 
the  words  of  the  statute  that  it  was  a  "  fermented  or  distilled 
liquor."  91 

§  35.  Wine. 

The  term  wines  has  been  construed  as  including  the  fermented 
juice  of  the  grape  and  possibly  of  other  fruit,  and  is  said  not  to 
be  a  spirituous  liquor.92  So  wine  has  been  held  not  to  be  a  spirit- 
uous liquor  within  the  meaning  of  a  statute  forbidding  a  sale  of 
such  liquors  in  less  quantities  than  a  quart.93  There  is,  however, 
authority  for  the  statement  that  it  is  a  spirituous  liquor.94  So  in 
a  case  in  North  Carolina  wine  has  been  held  to  be  embraced  by 
the  term  "  spirituous  liquors."  95  But  Port  wine  has  been  held 
not  be  a  spirituous  liquor.96     Again  the  question  whether  black- 


so.  Schlicht  v.  State,  56  Ind.   173. 

90.  Cannon   v.   State,   18   Ind.   450. 

91.  State  v.  Williamson,  21  Mo. 
496. 

92.  People  v.  Crilley,  20  Barb.  (N. 
Y.)    246. 

The  Standard  Dictionary  defines 
wine  as  "  The  fermented  juice  of  the 
grape;  in  loose  usage  the  juice  of  the 
grape  whether  fermented  or  unfer- 
mented." 

Champagne  wine  has  been  held 
to  be  "liquor"  within  the  meaning 
of  a  statute  forbidding  a  credit  in 
excess  of  a  certain  amount  of  liquors 
sold.  Kizer  v.  Randleman,  50  N.  C. 
428. 

93.  Caswell  v.  State,  2  Humph. 
(Tenn.)    402. 

94.  Worcester  defines  wine  ( 1 )  as 
"The   fermented  juice  of  the  grape: 


a  spirituous  liquid  resulting  from  the 
fermentation  of  grape  juice;  and  (2), 
"  The  fermented  juice  of  certain  fruits 
resembling  in  many  respects  the  wine 
obtained  from  grapes,  but  distin- 
guished therefrom  by  naming  the 
source  whence  it  is  derived:  as  gin- 
ger-wine, gooseberry  wine,  currant 
wine,"  etc.  Hinton  v.  State,  132  Ala. 
29,   31,   31   So.  563. 

95.  State  v.  Giersch,  98  N.  C.  720, 
4  S.  E.  193. 

00.  State  v.  Moore,  5  Blackf  (Ind.) 
118.  The  court  said:  "Spirit  is  the 
name  of  an  inflammable  liquor  pro- 
duced by  distillation.  Wine  is  the 
fermented  juice  of  the  grape  or  a  prep- 
aration of  other  vegetables  by  fer- 
mentation. We  can  not  so  far  com- 
pound the  signification  of  these  gen- 
eral terms  as  to  call  wine  a  spiritu- 


§  30 J    PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.         .\:\ 

berry  wine  is  a  spirituous  liquor  has  been  held  to  be  one  for  the 
jury  to  determine.91  And  in  a  case  in  Georgia  it  is  decided  that 
courts  can  not  take  judicial  cognizance  that  a  domestic  blackberry 
wine  is  necessarily  intoxicating  and  in  a  trial  under  an  indict- 
ment for  selling  intoxicating  liquor  to  a  minor,  it  was  held 
error  to  refuse  to  admit  evidence  offered  by  the  accused  to  the 
effect  that  the  wine  sold  to  the  minor  was  not  intoxicating  and  to 
charge  the  jury  as  a  matter  of  law  that  such  a  drink  was  an 
intoxicating  liquor.98 

§  36.  Wine — as  an  intoxicating  liquor— statutes. 

It  has  been  determined  that  courts  will  take  judicial  notice  that 
wine  is  intoxicating  it  being  a  matter  of  common  knowledge." 
In  Maine,  however,  it  has  been  decided  that  whether  wine  made 
from  fruit  grown  in  the  state  is  an  intoxicating  liquor  is  for  the 
jury  to  determine.1  In  an  early  case  in  Indiana  it  was  declared 
that  the  court  does  not  know  judicially  that  wine  is  not  intoxicat- 
ing and  will  not  question  the  right  of  the  legislature  to  declare  it 
to  be  intoxicating.2  And  wine  is  held  to  be  an  intoxicating  liquor 
within  the  meaning  of  an  act  which  provides  that  the  words  "  in- 
toxicating liquors  "  as  used  in  the  act  shall  be  construed  as  mean- 
ing all  spirituous,  malt  and  vinous  liquors.3  Again  wine  being  a 
vinous  liquor  if  the  statute  makes  the  sale  of  such  liquor  unlawful 

ous    liquor.      We   think    port    wine   is  S.  W.   77:   43  Am.  Rep.  34:   Caldwell 

not  within   the  purview  of   the   stat-  v.    State,    43    I'la.    545,    30    So.    814. 

ute."     Per  Dewey,  J.  See   also   State   v.   Packer,    80    X.    C. 

07.  state  v.   Loury,  74  N.  C.  121.  439,  holding  in  the  case  of  porl   wine 

98.  Loid  v.  State.  KM  Ga.  726,  30  thai  it  was  not  necessary  to  intro- 
S.  E.  940.  The  court  said:  "No  duee  evidence  thai  it  was  intoxicat- 
court,  so  far  as  we  have  heen  ahle  to  ing  and  that  the  fact  of  its  intoxi- 
ascertain,  lias  held,  as  matter  of  law.  eating  quality  could  be  passed  on  by 
that  homemade  blackberry  wine  is  the  jury  without  proof. 
intoxicating.  The  intoxicating  qual-  See  Chamberlayne's  Modern  Law  of 
ities  of  such  wine  do  not  appear  to  be  Evidence,  S   718. 

so   well   known   or   recognized   by   the  *•  State  v.    Page,   66  Me.   418. 

people  generally."     Per  Simmons.  J.  -•  Jackson  v.  State,  19  End.  312. 

99.  Wolf  v.  State.  .30  Ark.  :2'.!7.  27  •"••  Morley  v.  Spurgeon,  ::s  [owa  405. 


44  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  37 

except  under  certain  conditions  in  a  prosecution  under  such  statute 
the  inquiry  is  whether  vinous  liquor  was  sold  and  not  whether  the 
wine  sold  was  intoxicating.4  And  in  a  presecution  for  the  sale  of 
wine  in  violation  of  a  statute  forbidding  its  sale  in  less  than  a 
certan  quantity  to  be  drank  on  the  premises  without  a  license  it  is 
not  necessary  to  show  that  the  wine  is  intoxicating  it  being 
sufficient  to  show  its  sale  to  be  drank  under  the  prohibited  circum- 
stances.5 

§  37.  Medicines — compounds  recognized  by  standard  dispensa- 
tories. 

In  a  leading  case  in  Kansas  the  rule  is  announced  that  whatever 
is  generally,  and  popularly  known  as  medicine,  an  article  for  the 
toilet,  or  for  ordinary  purposes,  recognized,  and  the  formula  for 
its  preparation  prescribed,  in  the  United  States  dispensatory,  or 
like  standard  authority,  and  not  among  the  liquors  ordinarily  used 
as  intoxicating  beverages,  such  as  tincture  of  gentian,  paregoric, 
bay  rum,  cologne,  or  essence  of  lemon,  is  without  the  prohibitions 
and  restrictions  of  an  intoxicating  liquor  statute,  and  may  be  so 
declared  as  matter  of  law  by  the  courts,  and  notwithstanding  such 
article  contains  alcohol  and  may  produce  intoxication.6     But  in  a 

4.  Hatfield  v.  Commonwealth,  120  classed  among  liquors  used  as  a  bev- 
Pa.  St.  395,  14  Atl.  151.  See  Reyfelt  erage  is  not  to  be  deemed  an  intoxi- 
v.   State,  73  Miss.  415,  18  So.  925.  eating  liquor  within  the  meaning  of 

5.  Schwab  v.  People,  4  Hun.  (N.  the  enactment  simply  because  it  con- 
Y. )    520.  tains    alcohol,    and    may,    or    in    fact 

6.  Intoxicating  Liquor  Case,  25  does,  produce  intoxication.  Holcomb 
Kan.  751,  37  Am.  Rep.  284.  See  also  v.  People,  49  111.  App.  73.  Per  Boggs, 
Robers  v.   State,  4  Ga.  App.   207,   60  J. 

S.   E.    1082.     Mason   v.   State,    1    Ga.  Lemon    extract   although   it  con- 

App.  534.     58   S.   E.   139.  tains   a   larger   percentage  of  alcohol 

An   article   generally   and   properly  than  is  to  be  found  in  whisky  has  been 

known    and    used    for    culinary    pur-  held  not  to  be  an  intoxicating  liquor 

poses,  recognized,  and  a  formula  pre-  within  the  meaning  of  a  statute  as  to 

scribed  for  its  preparation  as  such,  in  the  sale  of  such  liquors,  such  conclu- 

standard    dispensatories   prior   to   the  sion  being  based  on  the  fact  that  the 

enactment   of   an    intoxicating    liquor  extract   is   not  an   article  in   common 

statute,    and    not    then    known    and  use  as  a  beverage  but  that  its  com- 


§  38]   PARTICULAR  LIQ1  ORS—  COMPOUNDS  AND  MEDK  [Nl  47, 

case  in  Alabama  it  is  decided  that  the  fact  that  bitters  or  other 
dococtions  sold  are  classed  for  the  purposes  of  taxation,  by  tin- 
Treasury  Department  at  Washington,  as  a  proprietary  medicinal 
preparation  is  irrelevant  and  has  no  tendency  to  show  that  such 
decoction  does  not  contain  whisky  in  sufficient  quantity  to  produce 
intoxication.7 


§  38.  Compounds— proportion  of  alcohol — question  of  use  as  a 
beverage. 
In  determining  whether  a  compound  or  a  decoction  by 
whatever  name  it  may  be  called  is  an  intoxicating  liquor  within 
the  meaning  of  a  statute  restricting  or  prohibiting  the  sale  of  such 
liquor  the  proportion  of  alcohol  to  the  other  ingredients  therein  is 
an  element  to  be  considered.8      And  regard  must  be  had  to  the 


mon  use  is  for  culinary  purposes. 
Walker  v.  Dailey,  101  111.  App.  575. 
In  this  connection  it  lias  been  de- 
cided that  the  sale  of  lemon  extract 
by  a  merchant  in  the  ordinary  course 
of  his  business,  not  made  as  a  shift 
or  device  to  evade  the  provisions  of 
of  the  dram  shop  act  and  without 
intending  that  it  shall  be  used  as  a 
beverage  and  without  knowing  that  it 
is  contemplated  by  the  purchase  that 
it  is  to  be  used  for  that  purpose,  and 
in  the  absence  of  proof  that  it  is  an 
article  commonly  used  as  a  beverage, 
does  not  render  the  vendor  liable 
under  the  dram  shop  act.  Walker  v. 
Dailey.   101   111.   App.   575. 

And  in  another  case  it  is  decided 
thai  extract  of  lemon  is  not  to  be 
deemed  an  intoxicating  liquor  simply 
upon  proof  that  it  contains  alcohol 
in  sufficient  quantities  to  produce  and 
does  produce  intoxication,  and  will 
not  be  so  regarded  there  being  no 
proof  thai  sales  of  such  extract  were 
mere  shifts  or  devices  to  avoid  or 
evade  the  provisions  of  the  statute. 
Holcomb  v.   People,  49   111.  App.  7::. 


The  essence  or  tincture  of  gin- 
ger has  been  held  not  to  be  within 
the  meaning  of  an  intoxicating  liquor 
statute,  though  it  appeared  that  if  di- 
luted with  water  and  it  were  drunk 
to  excess  it  would  produce  intoxica- 
tion. Bertrand  V.  State.  73  Miss.  51, 
18   So.   545. 

7.  Wall   v.    State,   78    Ala.   417. 

8.  The  proportion  of  whisky  or 
ardent  spirits  to  the  other  ingredients 
in  a  compound  is  to  be  mainly,  if 
not  solely  considered  in  determining 
whether  the  compound  is  a  medicated 
liquor  of  such  a  character  as  cannot 
be  sold  without  a  license  within  the 
meaning  of  a  statute  forbidding  the 
sale  of  medicated  liquors  which  are  a 
compound  of  ardent,  vinuous,  malt, 
or  fermented  liquors,  without  a  li- 
cense.     Foster   v.   State.   36   Ark.   258. 

In  another  case  it  is  decided  that 
the  sale,  without  taking  out  the  pre- 
scribed license,  of  a  medicinal  prepa- 
ration capable  of  being  used  as  a  bev- 
erage, and  which  contains  such  a  per- 
centage of  alcohol  as  that,  if  drunk  to 
excess,  it   will  produce  intoxication.  i< 


4(;  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  38 

fact  whether  such  compound  could  or  could  not  be  used  as 
an  intoxicating  beverage  and  if  the  evidence  establishes  the  fact 
That  it  can  be  and  has  been  so  used  then  it  will  be  regarded  as 
within  the  meaning  of  a  statute  as  to  intoxicating  liquors.9  So  it 
-  said  that  the  rule  or  test  whether  a  compound  or  preparation 
■ithin  a  statute  as  to  the  sale  of  intoxicating  liquors  is  said  to 
be  that  if  the  compound  or  preparation  be  such  that  the  distinctive 
character  and  effect  of  intoxicating  liquor  are  gone,  that  its  use 
as  an  intoxicating  beverage  is  practically  impossible,  by  reason  of 
the  other  ingredients  then  it  is  outside  the  statute.  But  if,  on  the 
other  hand,  the  intoxicating  liquor  remain  as  a  distinctive  force 
in  the  compound,  and  such  compound  is  reasonably  liable  to  be 


unlawful  within  the  meaning  of  a 
statute  prohibiting  the  sale  without 
a  license  of  "  spirituous,  malt,  or 
any  intoxicating  liquors  or  bitters" 
whether  the  vendor  in  making  the 
sale  intended  that  it  should  be  used 
as  a  medicine  or  otherwise,  and  with- 
out reference  to  the  purpose  for  which 
it  was  bought  by  the  purchaser.  Col- 
well  v.  State,  112  Ga.  75,  37  S.  E. 
129. 

Evidence  to  show  proportion. — 
Y\  here  it  is  claimed  by  the  prosecu- 
tion that  a  certain  preparation  is 
intoxicating  it  is  proper  to  permit  the 
defendant  to  show  what  proportion 
of  intoxicating  liquor  it  in  fact  con- 
Commonwealth  v.  Pease,  110 
Mass.  412. 

The  essence  of  cinnamon  was 
found  by  the  jury  to  bo  an  intoxicat- 
ing liquor  within  the  meaning  of  a 
ite  forbidding  the  sale  of  such  liq- 
uors. State  v.  Muncey,  28  W.  Va.  494. 
The  court  said:  "It  is  immaterial 
what  are  the  ingredients  of  the  prep- 
aration or  mixture,  or  by  what  name 
it  is  known,  or  whether  it  is  patented 
or  not,  if  it  will  produce  intoxication 
the  sale  of  it  is  prohibited  by  stat- 
ute."    Per  Snyder,  J. 


Patent  medicines,  cordials, 
bitters,  tonics  and  other  articles  not 
recognized  by  any  standard  authority 
as  being  a  medicinal,  toilet  or  culinary 
preparation  are  to  be  regarded  as  in- 
toxicating liquors,  if  they  are  capable 
of  being  use  as  a  beverage,  and  con- 
tain such  a  percentage  of  alcohol  as 
that,  if  drunk  to  excess  they  will  pro- 
duce intoxication.  Mason  v.  State,  1 
Ga.  App.  534,  58  S.  E.  139. 

In  Missouri  it  has  been  decided  that 
a  compound  known  as  a  bitters,  and 
containing  alcohol  is  within  an  act 
forbidding  the  sale  without  a  license 
of  medicated  bitters  containing  al- 
cohol. State  v.  Wilson,  80  Mo.  303. 
See   State  v.  Lillard,  78  Mo.   136. 

*>•  Alabama. — Wadsworth  v.  Dun- 
nam,  98  Ala.  610,   13   So.  597. 

Arkansas. — Foster  v.  State,  36  Ark. 
258. 

Qeorgie.— Colwell  v.  State,  112  Ga. 
75.   37   S.  E.   129. 

Kansas. — State  v.  Coulter,  40  Kan. 
87.    19    Pac.    308. 

Vermont. — State  v.  Kezer,  74  Vt. 
50,  52  Atl.  116;  Paissell  v.  Sloan,  33 
Vt.  656. 


§  ;;sj    PARTICULAR   LIQUORS— COMPOI  NDS  AND  MEDICINES.  17 

used  as  an  intoxicating  beverage,  then  it  is  within  the  statute.10 
If  liquor  is  the  predominant  element,  or  sufficiently  retains  its 
intoxicating  character  to  render  the  mixture  reasonably  suscepti- 
ble of  use  as  a  beverage,  or  as  a  substitute  for  the  ordinary  intoxi- 
cating drinks,  it  falls  within  the  statutory  prohibition.11  But 
where  the  testimony  shows  that  it  has  never  been  used  as  an  intoxi- 
cant and  that  it  is  doubtful  whether  it  could  be  so  used  it  will  not 
be  regarded  as  an  intoxicating  liquor.12 


10.  Intoxicating  Liquor  Case,  25 
Kan.  751,  37  Am.  Rep.  284.  See  also 
Wadsworth  v.  Dunnam,  98  Ala.  610, 
13   So.    597. 

"  If  the  article  sold  cannot  be 
used  as  an  intoxicating  drink,  it  is 
not  within  the  prohibition  of  the  stat- 
ute, although  it  contains  as  one  of  its 
ingredients  some  spirituous  liquor. 
The  sale  of  such  article  is  not  within 
the  mischief  intended  to  be  remedied 
by  the  statute,  nor  within  the  fair 
meaning  of  its  language."  Common- 
wealth v.  Ramsdcll,  130  Mass.  08. 
Per    Morton,    J. 

Instruction  to  jury. — It  is  proper 
to  instruct  the  jury  that  if  the  dis- 
tinctive character  of  a  liquor  "  as  an 
intoxicating  liquor  was  so  destroyed 
thai  it  could  not  be  used  as  a  bever- 
age, and  it  became  in  fact  a  medicine 
in  tic  used  for  diseases,  and  of  such  a 
character  that  it  could  not  in  reason, 
be  styled  or  used  as  an  intoxicating 
drink,  its  sale  was  not  a  violation  of 
law."     State  v.   LafTer,  38  Iowa.  422. 

In  a  case  in  Alabama  in  an  action 
mi  promissory  note  which  was  given 
in  settlement  of  an  account  for  goods 
sold  and  delivered,  some  of  the  items 
being  for  a  certain  cordial  known  as 
"Ginseng  cordial"  where  one  of  the 
issues  was  whether  such  cordial  was 
intoxicating  and  therefore  its  sale 
prohibited  by  statute  it  was  held  error 
to  instruct  the  jury  that  "  If  the  jury 
believe    from    the    evidence    that    the 


compound  or  cordial  included  "  in  the 
account  "  was  not  reasonably  suscepti- 
ble of  being  used  as  an  intoxicating 
beverage,  then  its  sale  is  not  prohib- 
ited by  law,  and  the  notes  sued  for 
would  not  be  invalid  on  account  of  the 
sale  of  such  bitters."  Wadsworth  v. 
Dunnam.    117   Ala.  661,  23  So.   699. 

11.  Carl  v.  State,  89  Ala.  93,  8 
So.  156. 

In  Arkansas  on  the  trial  of  an  in- 
dictment for  the  unlawful  sale  of  in- 
toxicating liquors  where  the  sale  of 
a  certain  cordial  was  proved  which 
the  evidence  tended  to  show  was  an 
intoxicating  compound  containing  a 
certain  per  cent  of  alcohol  or  ardent 
spirits  and  there  was  no  proof  that 
he  was  a  licensed  dealer  it  was  held 
to  be  no  error  to  instruct  the  jury 
that  if  they  found  such  cordial  was 
"a  compound,  or  composed  in  part,  of 
alcohol,  and  is  an  intoxicating  liq- 
uor, and  was  used  or  could  be  used 
as  a  beverage"  they  would  be  auth- 
orized to  convict  the  defendant  and 
that  if  they  found  "that  the  article 
sold  was  not  used,  or  could  not  be 
used,  as  a  beverage,"  they  would  be 
authorized  to  acquit  the  defendant. 
Davis  v.  state.  .')()  Ark.  17,  6  S.  W. 
388. 

12-  Mackall  v.  District  of  Colum- 
bia. 16  App.  D.  C.  301.  State  v. 
LafTer.  :!s  Iowa  422.  Commonwealth 
v.   Ilamsdell,  130  Mass.  68. 


48  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  39 

§  39.  Compounds — Sale  of  to  be  used  as  a  beverage. 

Intoxicating  liquors  retain  their  character  as  such  where  they 
are  intended  to  be  sold  and  used  as  a  beverage,  though  disguised 
by  some  tincture  or  preparation,  so  as  to  have,  to  some  extent, 
the  taste,  flavor  or  appearance  of  medicines.13  A  decoction  though 
called  a  bitters  or  invigorant  may  be  a  vinous  or  spirituous  liquor 
within  the  meaning  of  a  statute  where  it  has  been  purchased  to  be 
drank  as  a  beverage;  is  shown  to  contain  whisky  or  high  wines 
and  when  so  drank  produces  intoxication.14  So  although  a  liquid 
which  contains  more  than  the  per  cent  of  alcohol  stated  in  an  in- 
toxicating liquor  statute  may  be  manufactured  for  a  lawful  pur- 
pose and  its  sale  as  a  medicine  lawful  yet,  when  sold  as  an  intoxi- 
cating beverage,  it  is  an  intoxicating  liquor  within  the  meaning  of 
the  statute.15  So  the  sale  of  peppermint  essence  which  contains 
a  large  per  cent  of  alcohol  and  which,  though  generally  used  as  a 
carminative,  may  be  used  as  a  beverage,  and  is  sold  with  knowl- 
edge by  the  seller  that  it  is  bought  for  the  latter  use  is  to  be  re- 
garded as  an  intoxicating  liquor  within  the  meaning  of  a  statute.16 
And  on  the  trial  of  one  charged  with  violating  the  local  option 
liquor  statute,  it  was  held  not  to  be  error  for  the  court,  in  charging 
on  the  issue  of  fact  as  to  the  intoxicating  nature  of  the  liquor 

13.  Russell   v.   Sloan,   33  Vt.   656.  travention    of    the    statute;     whether 

14.  wali  v.  State,  78  Ala.  417.  the    parties    by    their    voluntary    act 

15.  State   v.   Krinski,    78    Vt.    162,  do   not   take   the   preparation   out   of 
62  Atl.  37.  its  legitimate  use  and  place  it  in  the 

1C.  State  v.   Kezer,   74   Vt.   50,   52  list  of  intoxicating  liquors.     The  pur- 

Atl.  116.     The  court  said:     "Though  pose  of  the  statute  is,  by  prohibiting 

this  itnd  many  articles  made  for  med-  the    sale    of    intoxicating    liquors,    to 

icinal,    culinary    and    other    purposes  prevent  their  use  and  restrain  intem- 

contain   ;i    large   per   cent   of   alcohol,  perance,  and  it  is  a  reasonable  view 

they  are  not  made  for  beverages  and  that  when  a  medicine,  or  other  prep- 

fortunately    are    not    often    used    as  aration     containing     enough     alcohol 

such.   *   *   *     But  when  one  of  these  to   make   a   man    drunk,   is   sold   and 

preparations   is  sold   for  the  purpose  bought  for  that  purpose,  it  is,  by  the 

of  intoxication,  or  the  seller  has  reas-  act    of    the    parties,    given    a    status 

onable    cause   to    believe    it    was    ob-  with    intoxicating  liquors."     Per   Ty- 

tained  for  that   purpose,  the  question  ler,  J. 
is    whether    the    sale    is    not    in    con- 


§  40]    PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.  |g 

sold,  to  instruct  the  jury  in  substance  that  the  accused,  though  a 
licensed  druggist,  could  not  legally  sell  a  compound  or  preparation 
of  intoxicating  liquor  and  other  ingredients,  if  the  intoxicating 
liquor  retained  its  distinctive  character  and  effect,  and  such  com- 
pound or  preparation  was  reasonably  suited  to  be  used  as  an  in- 
toxicating beverage.17 

§  40.  Compounds— Good  faith  in  making  sale. 

Where  a  compound  or  preparation  which  contains  whisky  is 
sold  in  good  faith  for  medical  purposes  by  one  authorized  to  sell 
medical  preparations,  it  will  not  ordinarily  be  considered  an  in- 
toxicating liquor  within  the  meaning  of  a  statute.18  The  test  is 
said  to  be  whether  the  preparation  claimed  to  be  a  medicine  was 
in  fact  a  medicine  and  sold  in  good  faith  and  not  as  a  beverage, 
or  whether  it  is  a  sham  preparation,  disguised  as  medicine,  really 
an  intoxicating  liquor  and  sold  as  a  beverage.19  If  liquors  and 
other  ingredients  are  used  and  mixed  in  such  manner  and  propor- 
tions as  to  counteract  the  intoxicating  force  and  character  of  the 
liquor,  fairly  constituting  a  medicine,  and  rendering  its  use  as 
a  beverage  practically  impossible  it  is  not  within  the  statute.20 
So  in  a  case  in  the  federal  court  it  is  said  in  this  connection :  "  The 
fact  therefore  that  a  mixture  possesses  so  much  alcohol  that  per- 


17.  Bradley  v.  State,  121  Ga.  201,  momvealth  v.  Ramsdell,  130  Mass.  68. 
48    S.   E.   981.  20-  Carl  v.  State,  89  Ala.  93,  8  So. 

18.  Parker   v.   State,   31    Ind.   App.  156. 

650,  68  N.  E.  912.  Gum      camphor      and      alcohol 

10.  Bertrand  v.  State,  73  Miss  51,  mixed  by  a  druggist  is  not  a  spiritu- 

18   So.   545:    King  v.   State,   58  Miss  ous   liquor   within   the  meaning   of  a 

737_  statute  forbidding  the  sale  of  "  spirit- 

The  fact  that  a  liquor  which  is  in-  uous  liquors  "  withoul  a  license.     State 

tozicating  has  been   sold  as   a    med-  v.   Haymond,  20  \Y.   Va.   18,  43  Am. 

icine,  or  that  it  is  attempted  to  dis-  Rep.  787,  wherein  the  court  said:  "It 

guise   it    under  the  name   of   a   med-  certainly   was   never   intended  by  the 

icine    does    not    cause    it    to    lose    its  legislature    to    prohibit    the    sale    of 

character    as    an    intoxicating    liquor  such    mixture    by   the   statute,    under 

within    the    meaning    of    the    statute.  which    the    indictment     in    this    case 

Gault    v.    State,    34   Ga.    533.      Com-  was  found."     Per  Johnson.  P. 


50  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  40 

sons  may  become  intoxicated  by  drinking  such  a  quantity  as  may 
be  drank  without  imperiling  life,  cannot  be  accepted  as  the  sole 
test  by  which  to  determine  if  the  mixture  should  be  classed  as 
•  listilled  spirits,  and  dealers  therein  as  liquor  dealers.  If  a  prepa- 
ration is  not  intended  as  a  beverage,  but  is  put  up  in  good  faith  as 
a  medicinal  preparation  and  sold  as  such,  and  there  are  reason- 
able grounds  to  believe  that  it  possesses  curative  properties  and 
no  more  spirits  are  used  in  the  preparation  than  are  reasonably 
necessary  to  extract  and  hold  in  solution  the  medicinal  properties 
of  the  various  drugs  employed,  such  preparation  is  medicinal, 
and  does  not  lose  its  character  as  such,  although  it  is  intoxicating 
when  used  to  excess."  21  So  in  Vermont  it  is  decided  in  an  early 
case  that  an  act  prohibiting  traffic  in  intoxicating  drinks,  does  not 
apply  to  medicinal  preparations  in  which  alcohol  is  used  in  quan- 
tities capable  of  producing  intoxication,  such  as  bitters,  tinctures 
and  others  of  a  like  character  which  are  in  good  faith  made  and 
sold  for  medicinal  purposes.22  So  where  a  druggist  without 
license  to  sell  intoxicating  liquors,  and  without  a  prescription 
from  a  physician,  sold  a  compound  consisting  of  whisky  and  gum 
ginacum  to  be  used,  and  which  was  used,  by  the  purchaser  as  a 
remedy  for  rheumatism  the  sale  was  held  not  to  be  in  violation 
of  a  statute  making  unlawful  the  sale  of  intoxicating  liquors 
without  a  license.23  In  Connecticut,  however,  under  a  statute 
providing  that  tht  term  "  spirituous  and  intoxicating  liquors  " 
as  used  therein  shall  be  held  to  include  "  all  mixed  liquors  of 
which  a  part  is  spirituous  and  intoxicating  "  it  has  been  decided 
that  compounded  medicines  of  which  a  part  is  spirituous  liquor, 
prepared  and  sold  by  a  druggist  are  included  therein.24 


21.  United    States    v.    Stubblefield,  22.  RlIssell  v.  Sloan,  33  Vt.  656. 

40  Fed.  454.     Per  Thayer,  J.,  holding  23.  Parker   v.    State,    31    Ind.   App. 

that,  "Lemon  Ginger"  and  "Empire  650,  68  N.  E.  912. 
Tonic   Bitters      were   not,   under  the  24.  State  v.  Gray,  61  Conn.  39,  22 

above  rule,   distilled  spirits.  Atl.   675. 


§  41]    PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.         51 

§  41.  Compounds — whether  intoxicating  liquor — question  of  fact 
— Judicial  notice. 
Whether  or  not  a  compound  containing  intoxicating  liquor  is 
of  such  a  character  that  a  sale  thereof  is  in  violation  of  the  law 
is  not  a  question  of  law  for  the  court  but  of  fact  for  the  jury.25 
So  as  to  articles  not  known  to  the  United  States  dispensatory,  or 
other  similar  standard  authority,  compounds  of  intoxicating 
liquors  with  other  ingredients,  whether  put  up  upon  a  single  pre- 
scription and  for  a  single  case,  or  compounded  under  a  given  for- 
mula and  sold  under  a  specific  name,  such  as  bitters,  cordials  and 
tonics,  whether  they  are  within  or  without  a  statute  regulating 
and  restricting  the  sale  of  intoxicating  liquors,  is  a  question  of 
fact  for  the  jury  and  not  one  of  law  for  the  court.26  So  it  was 
held  to  be  a  question  of  fact  for  the  jury  whether  "  ginseng 
cordial  "  was  within  the  meaning  of  such  a  law,  it  not  being  what 
was  generally  known  as  intoxicating  liquor  nor  on  the  other 
hand  what  was  known  as  medicine,  or  as  a  toilet  or  culinary 
article.27  And  whether  or  not  a  mixture  of  whisky  and  other  in- 
gredients is  of  an  intoxicating  nature  so  as  to  be  within  the  mean- 
ing of  an  intoxicating  liquor  statute  is  one  of  fact  for  the  jury.28 
Again  in  the  case  of  bitters  or  liquors  though  intoxicating  it  has 
been  declared  that  the  court  can  not  judicially  know  or  assume 
as  a  matter  of  law  that  they  are  within  the  terms  of  a  statute  regu- 
lating  the  sale  of  spirituous,  vinous  or  malt  liquors.29  And  in 
a  case  in  Florida  it  is  said :  "  we  are  at  least  very  much  inclined 
to  the  opinion  that  we  cannot  take  judicial  notice  that  either 
orange  mint,  or  the  elixir  of  orange  mint,  or  whatever  might  fall 
under  the  classification  of  "  Patent  Alcoholic  Bitt<  rs  "  is  intoxicat- 


25.  State  v.  Gregory,  110  Iowa  624,  -s-   Bradley  v.  State,   121   Ga.  201, 
82  N.  W.  335.  48  S.   E.  981. 

26.  Tntoxicatin-    Liquor   Cases,   25  -*'»•  Allred  v.  State.  89  Ala.  112,  8 
Kan.  751.  37  Am.  Rep.  2S4.  So.  56;   Blankensfcip  v.  Sfate.  03  Ga. 

27.  Wadsworth  v.  Dunnam,  98  Ala.  814,  21  S.  E.  130. 
610,  13  So.  597. 


52  PARTICULAR  LIQUORS— COMPOUNDS  AND  MEDICINES.    [§  42 

ing.30  But  ill  Kentucky  it  is  declared  by  the  court  in  a  case  that 
without  evidence  it  considers  that  it  is  a  matter  of  common  knowl- 
edge that  Jamaica  ginger  is  an  intoxicant  and  a  spirituous  liquor 
and  that  it  is  hardly  more  necessary  to  introduce  evidence  of  that 
fact  that  it  would  be  of  whisky.31 

§  42.  Compounds — whether  intoxicating  liquor — conclusion. 

From  the  preceding  sections  and  cases  cited  therein  it  will  be 
seen  that  different  elements  are  given  especial  prominence  in  de- 
termining the  question  whether  a  compound  containing  alcohol 
or  intoxicating  liquor  is  in  fact  an  intoxicating  liquor  wthin  the 
meaning  of  a  statute  regulating  or  prohibiting  the  sale  of  such 
liquors.  In  the  consideration  of  this  question  regard  must  be 
had  to  the  intent  and  purpose  of  the  statutes  upon  this  subject. 
They  were  passed  by  the  state  in  the  exercise  of  that  broad  power, 
known  as  the  police  power,  in  the  exercise  of  which  the  state  is 
supposed  to  act  for  the  benefit  of  the  public  health,  safety,  and 
morals  and  to  regulate  and  control  those  matters  which  may  affect 
the  same  injuriously.  The  mere  fact  that  a  compound  may  con- 
tain a  considerable  proportion  of  alcohol  or  whisky  while  it  may 
be  a  factor  to  be  considered  in  determining  whether  such  com- 
pound comes  within  the  meaning  of  the  statute  should  not  as  a 
general  rule  be  a  controlling  element.  Nor  do  we  think  should 
the  fact  that  the  compound  may  be  used  as  a  beverage.  It  would 
seem  that  by  far  the  most  important  element  would  be  the  good 
faith  in  making  the  sale,  and  as  a  fact  to  be  considered  upon  the 
question  of  good  faith  the  proportion  of  alcohol  to  the  other  ingredi- 
ent or  ingredients  may  be  taken  into  consideration.  A  compound 
which  is  of  a  medicinal  character  may  contain  a  large  proportion 
of  alcohol  yet  if  sold  in  good  faith  for  the  purpose  of  medicine,  the 
fact  of  the  large  proportion  of  alcohol  therein  or  the  fact  that  it 

30.  Butler    v.    State,   25    Fla.    347,  81.  Mitchell  v.  Commonwealth,  106 

6  So.  67.  Ky.  602,  51  S.  W.  17. 


§  42]    PARTICULAR  LIQUORS-  COMPOUNDS   AND   MEDICINES.  53 

may  be  used  as  a  beverage  should  not  be  controlling  as  bringing  it 
within  the  meaning  of  the  words  "  spirituous  liquors  "  or  "  in- 
toxicating liquors,"  as  used  in  the  statutes.  The  object  of  such 
statutes,  whether  of  regulation  or  prohibition,  is  to  control  the 
sale  of  those  liquors  which  are  ordinarily  known  as  intoxicating 
liquors  and  which  are  drank  as  beverages.  The  mere  fact  that 
a  compound  may  be  drank  as  a  beverage  should  not  control.  On 
the  other  hand,  however,  if  it  appears  that  the  compound  is  a 
sham  one,  and  given  the  name  of  a  medicine  as  a  mere  cover  for  its 
sale  and  that  it  is  in  fact  sold  for  the  purposes  of  using  as  a  bever- 
age then  it  should  be  considered  as  within  the  meaning  of  such  a 
statute.  And  as  a  general  rule  the  question  whether  a  compound 
is  an  "  intoxicating  liquor  "  or  a  "  spirituous  liquor  "  as  these 
words  are  used  in  a  statute  should  be  one  of  fact  for  the  jury 
to  determine,  giving  especial  prominence  to  the  question  of  the 
good  faith  of  the  parties  in  the  making  of  the  sale,  taking  into 
consideration  the  circumstances  in  connection  with  the  sale  and 
in  some  cases,  the  proportion  of  alcohol  or  whisky  as  bearing  upon 
the  question  of  good  faith.  As  an  exception  to  this  rule  just 
stated,  reason  favors  the  doctrine  stated  in  a  preceding  section  that 
whatever  is  generally  and  popularly  known  as  medicine,  an  arti- 
cle for  the  toilet  or  for  culinary  purposes,  recognized,  and  its 
formula  prescribed,  in  a  dispensatory  of  standard  authority,  and 
not  among  the  liquors  ordinarily  used  as  intoxicating  beverages, 
is  not  within  the  meaning  of  an  intoxicating  liquor  law  and  may 
be  so  declared  as  a  matter  of  law  by  the  court-. :- 

32.  See   in   this   connection    Cham-       berlayne'a    Modem   Law   of   Evidence, 

§§  "10,  717. 


54  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.        [J  43 


CHAPTER  III. 

UNITED  STATES  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS. 

Section  43.  Power  of  Congress. 

44.  Fourteenth  Amendment  to  Federal  Constitution  as  affecting  power 

of  State. 

45.  Fourteenth  Amendment  does  not  prevent  state  legislation  as  to 

liquor  traffic. 

46.  Other  Federal  Constitutional  provisions  as  affecting  right  of  state. 

47.  Federal  Constitution  as  affecting  right  of  State  continued.     Par- 

ticular laws. 

48.  Power  of  state  as  affected  by  United  States  constitution— com- 

merce. 

49.  Vance  v.  Vandercook.     Rules  stated  in. 

50.  Power  of  state  as  to  interstate  shipments  generally. 

51.  Sales  in  original  packages — Prior  to  Wilson  Act. 

52.  Keeping  liquors  in  state  for  sale  in  another  state. 

53.  Can  not  forbid  shipment  into  state. 

54.  Wilson  Act — effect  and  construction  of. 

55.  Wilson  Act  does  not  prevent  right  to  order  and  receive. 

56.  Statute   limiting  rigbt  to   order— application   to   state   official. 

57.  Wilson  Act— words  "  upon  arrival  "  construed. 

58.  State  statute  as  to  place  of  delivery  and  sale. 

59.  Soliciting  of  orders. 

GO.  As  to  right  to  advertise. 

Sec.  43.  Power  of  Congress. 

Under  the  full  and  comprehensive  power  conferred  upon  Con- 
gress it  has  been  said  that  it  has  unquestionably  the  power  to 
exclude  intoxicating  liquors  from  any  or  all  of  its  territories  or 
limit  their  sale  under  such  regulations  as  it  may  prescribe  and 
that  it  may  legislate  in  accordance  with  the  special  needs  of  each 
locality,  and  vary  its  regulations  to  meet  the  conditions  and  cir- 


§  43]        CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.  55 

cumstances  of  the  people.1  So  it  has  been  determined  by  the 
United  States  Supreme  Court  that  the  act  of  Congress  making  it 
an  offense  to  sell  ardent  spirits  to  an  Indian  was  constitutional 
and  based  upon  the  power  of  Congress  to  regulate  commerce  with 
the  Indian  tribes  and  that  this  power  extends  to  the  regulation 
of  commerce  with  the  tribes  and  the  individual  members  of  such 
tribes  though  the  traffic  and  the  Indian  with  whom  it  is  carried 
on  are  wholly  within  the  territorial  limits  of  a  state.2  And  in 
this  connection  it  was  also  determined  that  no  state  can  by  either 
its  constitution  or  other  legislation,  withdraw  the  Indians  within 
its  limits  from  the  operation  of  the  laws  of  Congress  regulating 
trade  with  them,  notwithstanding  any  rights  it  may  confer  on 
such  Indians  as  electors  or  citizens.3  So  Congress  has  power  to 
prohibit  the  introduction  and  sale  on  Indian  reservations  of  malt 
liquors  though  the  proof  before  a  jury  may  show  that  such 
liquors  are  not  intoxicating.4  But  in  the  case  of  land  within  a 
state  which  is  allotted  in  severalty  to  an  Indian  and  held  in  trust 
by  the  United  States  it  is  decided  that,  citizenship  being  con- 
ferred upon  the  allottee,  the  United  States  surrenders  to  the  state 
the  control  over  the  Indian  and  that  the  land  is  no  longer  Indian 
country  within  the  meaning  of  that  term  as  used  by  Congress 
and  construed  by  the  courts.5     It  is  said  by  the  United  States 

1.  Edleman  v.  United  States,  86  Terr.  474,  52  S.  W.  38.  The  court 
Fed.  456,  30  C.  C.  A.  186.  Per  Mor-  said:  "No  constitutional  provision 
row,  J.  See  Nelson  v.  United  States,  has  been  pointed  out  to  us  prohibit- 
30  Fed.  113.  ing  the  exercise  by  congress  of  this 

2.  United  States  v.  Holliday,  3  power.  Here  the  sovereignty  of  the 
Wall.  (U.  S.)  407,  IS  L.  Ed.  182,  United  States  is  complete,  full  and 
holding  also  thai  by  the  act  of  Feb.  undivided.  Whatever  the  federal  and 
12,  1862,  Congress  intended  to  make  state  legislatures  combined  may  do 
it  penal  to  sell  spirituous  liquor  to  in  a  state,  the  federal  congress  alone 
an  Indian  under  charge  of  an  Indian  may  do  here.  All  of  the  police  powers 
agent  although  it  was  sold  outside  of  exercised  by  the  states  in  their  juris- 
any  Indian  reservation  and  within  the  dictions  is  exercised  by  the  federal 
limits  of  a  state.  government  in  this  jurisdiction."    Per 

«•  United    States    v.     Holliday,     3       Clayton.   J. 
Wall    (U.  S.)    407,   18  L.   Ed.    182.  5«  United  States  v.  Sulton,  16S  Fed. 

4.  United    States    v.    Cohn,    2    Ind.       253,    citing    United    States    v.    Four 


50  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.        [§  44 

Supreme  Court :  "  We  are  of  the  opinion  that  when  the  United 
States  grants  the  privileges  of  citizenship  to  an  Indian,  gives  to 
him  the  benefit  of  and  requires  him  to  be  subject  to  the  laws,  both 
civil  and  criminal,  of  the  state,  it  places  him  outside  the  reach  of 
police  regulations  on  the  part  of  Congress ;  that  the  emancipation 
from  Federal  control  thus  created  cannot  be  set  aside  at  the  in- 
stance of  the  government  without  the  consent  of  the  individual 
Indian  and  the  State,  and  that  this  emancipation  from  Federal 
ocntrol  is  not  affected  by  the  fact  that  the  lands  it  has  granted  to 
the  Indian  are  granted  subject  to  a  condition  against  alienation 
and  encumbrance,  or  the  further  fact  that  it  guarantees  to  him 
an  interest  in  tribal  or  other  property."  6 

§  44.  Fourteenth  Amendment  to  Federal  Constitution  as  affecting 
power  of  State. 

The  Fourteenth  Amendment  to  the  United  States  Constitution 
provides  that  "  no  stale  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  state  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws."  The 
privileges  and  immunities  guaranteed  to  the  citizen  by  this  amend- 
ment relate  to  those  rights  which  may  be  called  fundamental, 
those  which  belong  of  right  to  all  citizens  of  a  free  government, 
and  which  have,  at  all  times,  been  enjoyed  by  the  citizens  of  the 
several  states.7     The  fourteenth  amendment  was  never  designed 

Bottle  of  Sour  Wash  Whisky,  90  Fed.  an  Indian  do  not  apply  to  an  Indian 

720;    Ex   parte  Crow  Dog,   109  U.   S.  to    whom    an    allotment    of    land    has 

550,  3  Sup.  Ct.  396,  27  L.  Ed.  1030;  been  made  or  who  has  become  a  cit- 

United  States  v.  Martin,  14  Fed.  817;  izen  of  the  state. 

Forty  Three  Gallons  of  Cognac  7.  Meehan  v.  Excise  Commission- 
Brandy,  11  Fed.  47.  ers,  73  N.  J.  L.  382,  64  Atl.  689. 

«•  Matter  of   Heff,   197   U.    S.   488,  This  amendment  does  not  define  the 

25  Sup.  Ct.  506,  49  L.  Ed.  848,  hold-  states  of  any  of  those  powers  of  police 

ing    that    the    police    regulations    of  which  were  originally  reserved  at  the 

Congress  as  to  the  sale  of  liquor  to  time  of  the  adoption  of  the  constitu- 


§  45]        CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.  57 

to  interfere  with  the  exercise  by  a  state  of  its  exclusive  right  to 
make  all  proper  police  regulations  to  promote  the  health,  peace, 
morals,  education  or  good  order  of  its  people,  so  long  as  some  par- 
ticular provision  of  the  Constitution  of  the  United  States  is  not 
infringed.8 

§  45.  Fourteenth  Amendment  does  not  prevent  state  legislation 
as  to  liquor  traffic. 
The  privileges  and  immunities  of  citizens  of  the  United  States 
are  priveleges  and  immunities  arising  out  of  the  nature  and  es- 
sential character  of  the  national  government,  and  granted  or 
secured  by  the  constitution  of  the  United  States  and  the  right  to 
sell  intoxicating  liquors  is  not  one  of  the  rights  growing  out  of 
such  citizenship.9  As  we  have  stated  there  is  no  inherent  right  to 
sell  or  manufacture  intoxicating  liquors.  Each  and  every  state 
has  the  right  not  only  to  prohibit  the  sale  but  also  to  prohibit  the 
manufacture  of  such  liquors  and  such  a  statute  is  not  violative 
of  the  provision  of  the  United  States  constitution  that  a  person 
shall  not  be  deprived  of  his  property  without  due  process  of  law.10 
And  statutes  passed  by  a  state  in  the  exercise  of  its  police  power 
or  regulations  by  local  governmental  agencies  authorized  by  the 
state  which  are  for  the  purpose  of  regulation  of  the  liquor  traffic 
and  prescribing  the  conditions  under  which  it  may  be  carried  on 

tion,  and  was  not  designed  to  inter-  In  re  Rahrer,   140  U.  S.  545,  555,  11 

fere  with   the  power  of  the  state  to  Sup.    Ct.    865,    35    L.    Ed.    572.      Per 

protect  the  lives,  liberty  and  property  Mr.  Chief  Justice  Fuller, 

of  its  citizens,  and  to  promote  their  «•  State  v.  Bixman,  162  Mo.  1,  39, 

health,    morals,    education    and    good  62  S.  W.  828.     Per  Gantt,  J.,  citing 

order.     Ciozza  v.  Tiernan,   148   U.   S.  Barbier   v.    Connolly,    113    U.    S.    27, 

657,  13  Sup.  Ct.  721,  37  L.  Ed.  599.  28  L.  Ed.  923,  5  Sup  Ct.  357.     Bell's 

"It  is  not  to  be  doubted  that  the  Cap  R.  Co.  v.  Pennsylvania,  134  U.  S. 

power  to  make  the  ordinary   regula-  238,  33  L.  Ed.  892,  10  Sup.  Ct.  533. 

tions  of  police  remains  with  the   in-  »•  Giozza  v.  Tiernan,  14S  1".  s.  657, 

dividual  states  and  cannot  be  assumed  13  Sup.  Ct.  721,  37  L.  Ed.  599.     Per 

by  the  national  government    and  that  Mr.    Chief   Justice   Puller, 

in    this    respect    it    is   not    interfered  10-  Busch  v.  Webb,  122  Fed.  655. 
with  by  the  Fourteenth   Amendment. 


58 


CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.         [§  46 


have  been  generally  sustained  and  are  not  a  violation  of  the  Four- 
teenth Amendment  of  the  United  States  Constitution.11 

§  46.  Other  Federal  Constitutional  provisions  asaffecting  right  of 
state. 

A  star nte  which  prohibits  manufacturers  and  others  from  selling 
or  keeping  for  sale  within  the  state,  liquors  manufactured  or 
bought  by  them  previous  to  the  passage  of  the  act  is  not  uncon- 
stitutional as  an  ex  post  facto  law.12  And  such  a  law  is  held 
not  to  impair  the  obligation  of  contracts  within  the  meaning  of 
the  clause  in  the  United  States  constitution  forbidding  such  legis- 


11.  United  States. — Gray  v.  Con- 
necticut, 159  U.  S.  74,  15  Sup.  Ct. 
985,  40  L.  Ed.  80;  Kidd  v.  Pearson, 
128  U.  S.  1,  9  Sup  Ct.  6,  32  L.  Ed. 
346;  Mugler  v.  Kansas,  123  U.  S. 
623,  8  Sup.  Ct.  273,  31  L.  Ed.  205. 

California. — Ex  parte  Campbell, 
74  Cal.  20,  15  Pac.  318,  5  Am.  St. 
Rep.   418. 

Kansas. — State  v.  Durein,  70  Kan. 
1,  78  Pac.   152. 

Kentucky. — Burnside  v.  Lincoln 
County  Court,  86  Ky.  423,  6  S.  W. 
276. 

Louisiana. — State  v.  Mattle,  48  La. 
Ann.  728.   19  So.  748. 

Missouri. — Ex  parte  Swann,  96  Mo. 
44,  9  S.  W.  10. 

Ohio. — Adler  v.  Whitbeck,  44  Ohio 
St.  539,  9  N.  E.  672. 

South  Dakota. — State  v.  Brennan, 
2  S.  D.  384,  50  N.  W.  625. 

Tennessee. — Webster  v.  State,  110 
Tenn.  491,  S2   S.  W.   179. 

Vermont.  Sin  to  v.  Hodgson,  66  Vt. 
135,  28   Ail.   1089. 

Objection  not  sufficiently 
specific. — Tn  Indiana  it  lias  been  de- 
clared that  an  objection  that  an  act, 
as  applied  to  intoxicating  liquors,  is 
unconstitutional  because  it  authorizes 
the  taking  of  one's  property  without 


due  process  of  law  is  too  indefinite  to 
present  any  question  as  a  mere  gen- 
eral statement  without  specific  and 
definite  reasons  specifically  applied 
present  no  question  for  decision.  Rose 
v.  State,  (Ind.  S.  C.  1909),  87  N.  E. 
103. 

12.  State  v.  Paul,  5  R.  I.  185.  The 
court  said:  "That  it  does  in  effect 
prohibit  manufactures  and  others 
who  have  manufactured  or  bought  liq- 
uor before  the  passage  of  the  act 
from  selling  it  or  keeping  it  for  sale 
within  the  state  afterwards,  and  thus 
affects  injuriously  to  them  the  value 
of  such  property  on  their  hands 
does  not  make  it  an  ex  post  facto  law 
in  the  constitutional  sense.  To  meet 
the  well  settled  definition  of  such  a 
law,  a  statute  must  not  only  retroact, 
but  must  retroact  by  way  of  criminal 
punishment,  upon  that  which  was  not 
a  crime  before  its  passage.  Calder  v. 
Bull,  3  Dall.  386 ;  Carpenter  v.  Penn- 
sylvania, 17  How.  456.  As  the  ar- 
gument does  not  suppose  that  the  law 
in  question  retroacts  even  except  by 
the  civil  consequences  of  lessening 
the  value  of  certain  property  owned 
in  the  state  at  the  time  of  its  pas- 
sage, it  is  evident  that  the  objection 
has  no  foundation."     Per  Ames,  C.  J. 


§  47]        CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.  59 

lation.18  And  generally  il  may  be  Btated  thai  a  state  law  prohib- 
iting the  manufacture  and  sale  of  intoxicating  liquors  is  no1  re- 
pugnant to  any  clause  of  the  United  States  constitution.11 

§  47.  Federal  Constitution  as  affecting  right  of  State  continued. 
Particular  laws. 
The  inhibition  in  the  United  States  constitution  that  no  person 
shall  bo  deprived  of  his  life,  liberty,  or  property  without  due  proc- 
ess of  law  does  not  prevenl  a  state  from  providing  by  a  general 
legislative  enactment  that  a  license  fee  shall  be  necessary  to  enable 
one  to  carry  on  the  traffic  in  intoxicating  liquors.15  In  construing 
provisions  of  statutes  forbidding  the  sale  of  liquor  without  a 
license  and  providing  that  the  granting  of  a  license  for  its  sale  to 
a  druggist  shall  be  discretionary  with  the  county  commissioners 
it  has  been  decided  that  the  construction  of  these  statutes  which 
makes  them  applicable  to  a  licensed  pharmacist  does  not  render 
them  unconstitutional  as  violating  either  the  state  constitution 
or  the  Fourteenth  Amendment  of  the  United  States  constitution.16 
And  this  amendment  is  not  violated  by  a  statute  forbidding  the 
sale  of  spirituous,  vinous  and  mult  liquors  in  quantities  less  than 

13.  State  v.  Paul,  5  \l.  I.  185.    Tlie  protect    the    community   from    fraud, 

court  said:     "  The  argument  here  pro-  and    by   giving    credit    to    its    produe- 

ceeds  upon  the  false  assumption,  that  tions,  to  insure  a  safe  and  prosperous 

rights   of   property   are  absolute  and  commerce  in  them  abroad.   Whal  these 

unqualified,  and  not  restricted,  as  they  regulations   shall   he   always   suppos- 

necessarily    must    he    by    the   greater  ing  that  they  do  not  directly  conflict 

right  of  the  community,  to  have  them  with    positive   constitutional    prohibi- 

bo  exercised   within   it   as  to  he  com-  tions,    both    the    constitution    of    tin-; 

patible  with  its  well  being.  **  *     Our  state    and    the    constitution    of    the 

hit  ions    of   internal    police   and    of  United    Slate-    properly    leave    to    the 

trade,    adapted    by    positive    law    to  lawmaking    power    to    decide."      Per 

our   condition,   and   changed   by   it    ac-  Ames.  (\  J. 

cording  to  our  changing  circumstan-  "•   Bartemeyer   v.    Iowa,    18   Wall. 

ces,  are  designed  in  great  part  to  con-  (TJ.  S.)    ''^!>.  21    I..  Ed.  929. 

trol    the    use    of    property    to    such  i~>-  Appeal  of  Allyn,  (Conn.  1909), 

modes    as    are    consistent     with    lli*-"  71   Atl.   794. 

health  and  morals  of  (lie  community,  *6-  State  v.  Cray.  61  Conn.  39,  22 

and   the   sale  of   it    in    such    form    ami  Atl.    (575. 
with  such  guards  a-  ai                   ty  to 


00 


CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS. 


[§  47 


one  quart  without  first  having  obtained  a  license  therefor.17  In 
Kansas  it  has  been  decided  that  the  statutes  of  that  state  regulat- 
ing the  sale  of  intoxicating  liquors  are  not  violative  of  the  Four- 
teenth Amendment  because  of  the  discretion  vested  in  the  probate 
judges  of  the  respective  counties  over  the  subject  of  granting 
permits  to  sell  intoxicating  liquors  for  medical,  mechanical  and 
scientific  purposes.18  Statutes  conferring  such  a  discretion  in 
officials  are  held  to  confer  a  judicial  discretion  which  is  to  be 
exercised  only  with  reference  to  the  facts  and  circumstances  of 
each  case  and  not  prejudicially  or  capriciously.19  Again  it  has 
been  held  that  the  state,  as  a  police  regulation,  may  prohibit  the 
sale  of  one  kind  of  intoxicating  liquor  and  allow  the  sale  of  an- 
other kind  and  that  the  prohibition  of  wines  made  from  fruits 
grown  in  other  states  is  no  invasion  of  the  privileges  and  immuni- 
ties of  the  citizens  of  the  several  states  as  conferred  by  the  Federal 
Constitution.20     Again  in  an  early  case  in  Connecticut  it  is  de- 


17.  Giozza  v.  Tiernan,  148  U.  S. 
657,  13  Sup.  Ct.  721,  37  L.  Ed.  599. 

18.  State  v.  Durein,  70  Kan.  1,  78 
Pac.  152.  (This  case  pending  in  U.  S. 
S.  C.  on  writ  of  ever  allowed  June  19, 
1905.     Look  up.) 

19.  State  v.  Gray,  61  Conn.  39, 
22  Atl.  675 ;  State  v.  Durein,  70  Kan. 
13,  80  Pac.  987. 

2".  State  v.  Stucker,  58  Iowa  496. 

In  Arkansas  an  act  regulating  the 
sale  of  liquor  provided  as  follows: 
"  This  act  shall  not  be  held  to  apply 
to  one  who  manufactures  or  sells 
wines  in  this  state  from  native  grapes 
<<r  berries,  or  other  fruits  grown  in 
this  state,  and  who  sells  no  other  liq- 
uors, ardent,  malt,  vinous  or  fer- 
mented." Slate  v.  Marsh,  37  Ark. 
356;   Ark.  Arts,   1879,  p.  33. 

It  was  decided  that  this  act  or 
rather  section  did  not  conflict  with 
the  section  of  the  Constitution  of  the 
United    States    declaring    that    "The 


citizens  of  each  state  shall  be  entit- 
led to  all  privileges  and  immunities  of 
citizens  in  the  several  states  "  because 
a  citizen  of  any  state  could  manu- 
facture and  sell  in  Arkansas  regard- 
less of  quantity,  wines  from  native 
grapes,  berries  or  other  fruits,  grown 
in  the  state  without  a  license  if  he 
sold  no  other  liquors,  ardent,  malt, 
vinous  or  fermented.  State  v.  Marsh, 
37  Ark.  356. 

But  in  a  later  case  in  this  state  a 
statute  which  prohibited  the  sale  of 
wine  in  certain  prohibition  districts 
but  allowed  any  person  who  raised 
grapes  or  berries  in  such  districts  to 
sell  wine  of  his  own  make  "  upon  the 
premises  where  such  grapes  or  berries 
are  grown  and  the  wine  is  made " 
was  held  as  to  this  clause  a  discrim- 
ination against  wine  growers  in  other 
states  and,  to  that  extent,  unconstitu- 
tional. State  v.  Deschamp,  53  Ark. 
490,  14  S.  W.  653. 


§  48J        CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.  i;i 

cided  that  an  act  for  the  suppression  of  intemperance  which  pro- 
vides that  no  person  under  the  penalties  therein  prescribed,  shall 
own  or  keep  any  spirituous  or  intoxicating  liquors  with  intent  to 
sell  the  same  in  violation  of  that  act,  is  not  invalid,  as  conflicting 
with  any  provision  of  the  constitution  of  the  United  States,  or  of 
the  state  constitution,  or  as  opposed  to  natural  right  and  the  fun- 
damental principles  of  civil  liberty.21  But  in  a  case  in  Vermont 
it  has  been  decided  that  an  act  which  exempts  from  its  provisions 
"  sales  by  the  barrel  by  the  manufacturers  thereof  of  cider  manu- 
factured in  this  state  *  *  *  if  it  is  not  to  be  drunk  upon 
the  premises  "  and  "  sales  by  the  makers  thereof  of  native  wines 
manufactured  in  this  state  and  not  to  be  drunk  on  the  premises  of 
the  maker  "  discriminates  against  the  products  of  other  states  in 
violation  of  the  Fourteenth  Amendment.22 

§  48.  Power  of  state  as  affected  by  United  States  constitution- 
commerce. 
In  case  of  a  conflict  between  the  powers  claimed  by  the  state 
and  those  which  belong  exclusively  to  Congress,  the  former  must 
yield,  for  the  Constitution  of  the  United  States  and  the  laws 
made  in  pursuance  thereof  are  "  the  supreme  law  of  the  land."  23 
So  it  has  been  declared  of  a  state  in  this  connection  that  "  For  the 
purpose  of  protecting  its  people  against  the  evil  of  intemperance 
it  has  the  right  to  prohibit  the  manufacture  within  its  limits  of 
intoxicating  liquors;  it  may  also  prohibit  all  domestic  commerce 
in  them  between  its  own  inhabitants,  whether  the  articles  are  in- 
troduced from  other  states  or  from  foreign  countries;  it  may 
punish  those  who  sell  them  in  violation  of  its  laws;  it  may  adopt 
any  measures  tending,  even  indirectly  and  remotely,  to  make  the 
policy  effective   until   it   passes  the  line   of   power   delegated   to 

21.  State  v.  Wheeler.  25  Conn.  290.  2f*.  Adams     Express     Co.     v.     K.m- 

22.  State  v.   Hazelton.  78  Vt.  467,       tuekv.  214  V.  S.  218.    Per  Mr.  Justice 
f»3   Atl.   305.  Brewer. 


t;L>  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.        [§  49 

Congress  under  the  constitution.  It  cannot  without  the  consent 
of  Congress,  express  or  implied,  regulate  commerce  between  its 
people  and  those  of  the  other  states  of  the  Union  in  order  to  effect 
its  end,  however  desirable  such  a  regulation  might  be."24  And 
liquor  however  obnoxious  and  hurtful  it  may  be  in  the  judgment 
of  many  is  a  recognized  article  of  commerce.25  And  a  state  law 
passed  in  good  faith  for  the  suppression  the  liquor  traffic  is  not 
to  be  condemned  as  unconstitutional  because  it  may  incidentally 
hamper  the  freedom,  or  lessen  the  extent  of  interstate  commerce.26 
So  the  fact  that  the  manufacturer  of  intoxicating  liquors  intends 
to  export  them  does  not  affect  the  right  of  the  state  to  prohibit  the 
manufacture  of  such  liquors  it  being  declared  that  the  intent  of 
the  manufacturer  does  not  determine  the  time  when  the  article 
or  product  passes  from  the  control  of  the  state  and  belongs  to 
commerce.27  The  question  may  be  still  considered  in  each  case 
as  it  arises,  whether  the  fact  that  Congress  has  failed  in  the  par- 
ticular instance  to  provide  by  law  a  regulation  of  commerce 
among  the  states  is  conclusive  of  its  intention  that  the  subject 
shall  be  free  from  all  positive  regulation,  or  that,  until  it  posi- 
tively interferes,  such  commerce  may  be  left  to  be  freely  dealt 
with  by  the  respective  states.28 

§  49.  Vance  v.  Vandercook.    Rules  stated  in. 

In  Vance  v.  Vandecook  it  is  declared  by  the  United  States 
Supreme  Court  to  be  an  elementary  proposition  beyond  dispute 
that  the  respective  states  have  plenary  power  to  regulate  the 
sale  of  intoxicating  liquors  within  their  borders   and  the  scope 

24.  Bowman  v.  Chicago  &  N.  W.  R.  26.  License  Cases,  5  How.  (U.  S.) 
Co.,   125   U.   S.    165,    8   Sup.   Ct.   689,       504,   12  L.  Ed.  256. 

L062,  31  L.  Ed.  700.     Per  Mr.  Justice  27.  Kidd  v.  Pearson,  128  U.  S.  1,  9 

Matthews.  Sup.  Ct.  6,  32  L.  Ed.  346. 

25.  Adams  Express  Co.  v.  Ken-  2S-  Bowman  v.  Chicago  and  N.  W. 
tucky,  214  U.  S.  218,  29  Sup.  Ct.  633.  R-  Co.,  125  U.  S.  465,  8  Sup.  Ct.  689, 
Per  Mr.  Justice  Brewer.  1062,  31  L.  Ed.  700.    Per  Mr.  Justice 

Matthews. 


§  49]        CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.  63 

and  extent  of  such  regulations  depend  Bolely  on  the  judgment 
of  the  law-making  power  of  the  states,  provided  always,  they 
do  not  transcend  the  limits  of  state  authority  by  invading 
rights  which  are  secured  by  the  constitution  of  the  United  Stat  -. 
and  provided  further,  that  the  regulations  as  adopted  do  not 
operate  as  a  discrimination  against  the  rights  of  residents  or 
citizens  of  other  states  of  the  Union.29  The  court  also  de- 
clared that  equally  well  established  is  the  proposition  that  the 
right  to  send  liquors  from  one  state  into  another,  and  the  act  of 
sending  the  same  is  Interstate  commerce,  the  regulation  whereof 
has  been  committed  by  the  constitution  of  the  United  States  to 
Congress,  and,  hence,  that  a  state  law  which  denies  such  right,  or 
substantially  interferes  with  or  hampers  the  same,  is  in  conflict 
with  the  Constitution  of  the  United  States.  And  it  was  also  said 
that  the  settled  doctrine  is  that  the  power  to  ship  merchandise 
from  one  state  into  another  carries  with  it  as  an  incident,  the  right 
in  the  receiver  of  the  goods  to  sell  them  in  the  original  packages, 
any  state  regulation  to  the  contrary  notwithstanding;  that  is  to 
say,  that  the  goods  received  by  Interstate  Commerce  remain  under 
the  shelter  of  the  Interstate  Commerce  laws  of  the  Constitution, 
until  by  a  sale  in  the  original  package  they  have  been  commingled 
with  the  general  mass  of  property  in  the  State.  The  court  how- 
ever said  as  to  this  last  proposition  that  while  generally  true,  it 
is  no  longer  applicable  to  intoxicating  liquors,  since  Congress  in 
tlie  exercise  of  its  lawful  authority  has  recognized  the  power  of 
the  several  states  to  control  the  incidental  right  of  sale  in  the 
original  packages,  of  intoxicating  liquors,  shipped  into  one  state 
from  another,  so  as  to  enable  the  state  to  prevent  the  exercise  by 
the  receiver  of  the  accessory  right  of  selling  intoxicating  liquors 


20.  Vance   v.  Vandercook   Co..   170  438,  444.  is  Sup.  Ct.  674,  42  L.  Ed. 

TJ.  S.  438,   444.   IS   Sup.  Ct.   074.   42  lino.     Per  Mr.  Justice  White,  quoted 

L.  Ed.  1100.     Per  Mr.  Justice  White.  in    Adams   Express   Co.   v.   Kentucky, 

Vance   v.   Vandercook   Co..   170  U.   S.  214  U.  S.  218,  222,  29  Sup.  Ct.  033. 


64  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.         [§   50 

in  original  packages  except  in  conformity  to  lawful  state  regula- 
tions. In  other  words  by  virtue  of  the  act  of  Congress,  the  re- 
ceiver of  intoxicating  liquors  in  one  state,  sent  from  another,  can 
no  longer  assert  a  right  to  sell  in  defiance  of  the  state  law  in  the 
original  packages,  because  Congress  has  recognized  to  the  con- 
tray. 

§  50.  Power  of  state  as  to  interstate  shipments  generally. 

Though  a  state  is  bound  to  admit  an  article  imported  under  the 
laws  of  Congress  it  is  not  bound  to  find  a  market  for  its  sale.30  It 
is  decided  however  in  a  recent  case  that  the  states  are  not  au- 
thorized to  declare  when  interstate  shipments  of  liquors  shall 
become  subject  to  state  control.  Congress  has  the  exclusive  power 
to  fix  the  time  when  such  shipments  lose  their  interstate  character 
and  become  subject  to  such  control.31  But  in  this  connection  it 
has  been  declared  by  the  United  States  Supreme  Court  that  though 
a  liquor  sold  may  be  an  import  from  another  state,  and  Congress 
have  clearly  the  power  to  regulate  such  importations,  under  the 
grant  of  power  to  regulate  commerce  among  the  several  states, 
yet  Congress  having  made  no  regulation  on  the  subject,  the  traffic 
in  the  article  may  be  lawfully  regulated  by  the  state  as  soon  as  it 
is  landed  in  its  territory,  and  a  tax  imposed  upon  it,  or  a  license 
required,  or  the  sale  altogether  prohibited,  according  to  the  policy 
which  the  state  may  suppose  to  be  its  interest  or  duty  to  pursue.32 
And  in  an  early  case  in  Delaware  it  was  held  that  whether  an 
article  imported  is  sold  by  the  importer  in  the  original  cask  or 


30.  State    v.    Allmond,    2    Houst.  as  such.    Brown-Foreman  Co.  v.  Com- 

(Del).   612.  monwealth,    30    Ky.    Law    Rep.    793, 

While    the    legislature   cannot    reg-  101  S.  W.  321. 

ulate    interstate    commerce,    it    may  31.  McCord  v.  State,   (Okla.  1909), 

regulate  the  occupation  of  rectifying  101  Pac.  280. 

within  the  state,  and  provide  against  32.  License  Cases,  5  How.    (U.  S.) 

rectified    whisky    made    elsewhere   be-  504,    586,    12    L.    Ed.    256.      Per   Mr. 

ing  brought  into  the  state  and  labelloil  Chief  Justice   Taney, 
as  whisky  made  in  the  state  and  sold 


§  51]        CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.  gg 

package,  or  is  broken  up  for  retail  trade  it  became  subject  to  the 
state  laws  and  may  be  taxed  or  the  sale  of  it  prohibited.33 

§  51.  Sales  in  original  packages — Prior  to  Wilson  Act. 

A  statute  which  prohibits  the  selling  and  keeping  for  sale  of 
intoxicating  liquors  and  which  does  not  except  from  the  prohibi- 
tion the  selling  and  keeping  for  sale  of  imported  liquors  in  the 
original  packages  has  been  held  to  be  void  as  to  importers  of  such 
liquors  who  are  selling  or  keeping  for  sale  liquor  in  such  pack- 
ages.34 And  in  a  case  in  the  United  States  Supreme  Court  where 
the  constitutionality  of  a  prohibition  law  was  being  considered  the 
court  decided  that  in  so  far  as  it  applied  to  a  sale  in  original 
packages  by  the  importer  it  violated  the  provision  in  the  United 
States  Constitution  giving  Congress  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  states.35  But  a 
statute  which  permits  the  importation  of  intoxicating  liquors  in 
the  original  packages  wheh  may  be  kept  for  sale  by  the  importer 
and  which  permits  the  manufacture  of  such  liquors  for  sacra- 
mental and  medical  purposes  but  not  for  transportation  outside 
the  state  borders  is  not  a  regulation  of  commerce  in  violation  of 
the  Federal  Constitution.36  A  discriminating  tax  imposed  by  a 
state  operating  to  the  disadvantage  of  the  products  of  other  states 
when  introduced  into  the  first  mentioned  state,  is,  in  effect,  a 
regulation  in  restraint  of  commerce  among  the  states,  and  as  such 
is  a  usurpation  of  the  power  conferred  by  the  Constitution  upon 
the  Congress  of  the  United  States.37 

,t:{.  State    v.     Allmond,     2     Houst.  by    a    uniform    system,    so    long    as 

(Del.)    G12.  Congress   does   not    pass    any   law   to 

34.  State  v.  Amery,  12  R.  I.  64,  regulate  it,  or  allowing  the  states  to 
following  5  How.    (U.  S.)    504.  do    so,    it    thereby    indicates    its    will 

35.  Leisy  v.  Hardin,  135  U.  S.  100,  that  such  commerce  shall  be  free  and 
10  Sup.  Ct.  681,  34  L.  Ed.  128,  Chief  untrammelled." 

Justice   Fuller   said.     "Inasmuch    as  30.  Kidd  v.  Pearson,  128  r.  S.  1.  9 

interstate  commerce,  consisting  in  the  Sup.  Ct.  6,  32  L.  Ed.  34(i. 

transportation,  purchase  sale  and  ex-  37.  Walling  v.  Michigan,  116  U.  S. 

change  of  commodities,  is  national  in  446,  455,  6  Sup.  Ct.  454,  29  L.  Ed. 

its   character,   and   must   be  governed  691.     Per  Mr.  Justice  Bradley. 


66  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.    [§§52,53 

§  52.  Keeping  liquors  in  state  for  sale  in  another  state. 

A  law  which  forbids  the  keeping  of  intoxicating  liquors 
within  a  state  for  sale  in  another  state  is  not  an  interference  with 
interstate  commerce  it  being  declared  that  it  is  no -more  so  than  a 
law  which  forbids  the  sale  in  one  state  of  liquors  imported  from 
another.38  And  a  statute  prohibiting  the  keeping  of  liquors 
within  the  state  for  sale  has  been  held  not  to  apply  to  liquors 
which  are  being  transported  through  the  state  not  to  those  which 
are  being  stored  within  the  state  for  the  purpose  of  exporting 
them.39 

§  53.  Can  not  forbid  shipment  into  state. 

The  power  to  regulate  or  forbid  the  sale  of  a  commodity,  after 
it  has  been  brought  into  a  state,  does  not  carry  with  it  the  right 
and  power  to  prevent  its  introduction  by  transportation  from  an- 
other state.40  So  it  has  been  decided  by  the  United  States  Su- 
preme court  that  a  statute  forbidding  any  common  carrier  to 
bring  within  the  state  for  any  person,  or  persons  or  corporation 
any  intoxicating  liquors  from  any  other  state  or  territory  of  the 
United  States  without  first  having  been  furnished  with  a  certifi- 
cate under  the  seal  of  the  county  auditor  of  the  county  to  which 
said  liquor  is  to  be  transported  or  is  consigned  for  transportation, 
certifying  that  the  consignee  or  the  person  to  whom  said  liquor 
is  to  be  transported,  conveyed,  or  delivered  is  authorized  to  sell 
intoxicating  liquors  in  such  county  is  to  be  regarded  as  a  regula- 
tion of  commerce  although  it  was  not  adojDted  expressly  for  the 
purpose  of  regulating  commerce  between  its  citizens  and  those 
of  other  states  but  as  subservient  to  the  general  design  of  protect- 
ing the-  health  and  morals  of  its  people,  and  the  peace  and  good 
order  of  the  state,  against  the  physical  and  moral  evils  resulting 

38.  State  v.   Fitzpatrick,  16  R.   I.  4o.  Bowman   v.   Chicago   &   N.   W. 

54.  50,  11  Atl.  767.  R.  Co.,  125  U.  S.  405,  8  Sup.  Ct.  689, 

K>.  State   v.    Fitzpatrick,  16   R.    I.       1062,   31    L.   Ed.   700. 
54,   11   Atl.  767. 


§  54]        CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.  G7 

from  the  unrestricted  manufacture  and  sale  within  the  state  of 
intoxicating  liquors.  And  it  was  declared  thai  it  was  impossible 
to  justify  such  a  statute  by  classifying  it  as  an  inspection  law  or 
as  a  regulation  of  quarantine  or  a  sanitary  provision  for  the  pur- 
pose of  protecting  the  physical  health  of  the  community,  or  a  law 
to  prevent  the  introduction  into  the  state  of  disease,  contagious, 
infectious  or  otherwise.41  And  in  Kentucky  it  has  been  decided 
that  a  railroad  operated  in  that  state  whose  line  extends  into  a 
foreign  state,  is  engaged  in  interstate  commerce,  and  may  convey 
spirituous  liquors  from  such  foreign  state  to  the  consignee  in 
local  option  territory  in  Kentucky,  and  the  question  of  the  ship- 
ment on  the  part  of  the  consignee  being  a  trick  or  device  to  evade 
the  local  option  law,  has  no  place  in  the  transaction  so  far  as  the 
common  carrier  is  concerned.42  And  a  statute  by  which  it  is  made 
an  offense  to  sell,  lend,  give,  procure  for,  or  furnish  intoxicating 
liquors  to  any  person  who  is  an  inebriate  or  in  the  habit  of  becom- 
ing intoxicated  or  drunk  in  so  far  as  it  applies  to  a  common  carrier 
transporting  into  such  state  from  another  state  and  delivering  it 
to  a  person  within  the  description  of  the  statute  is  in  conflict  with 
the  commerce  clause  of  the  Federal  Constitution.45 

§  54.  Wilson  Act — effect  and  construction  of. 

In  order  to  enlarge  the  power  of  the  states  in  their  legislative 
action  in  regard  to  interstate  shipments  of  intoxicating  liquors 
Congress  in  1890  passed  an  act  known  as  the  Wilson  Act  by  which 
the  states  in  the  exercise  of  their  police  power  were  enabled  to 
pass  regulations  or  prohibitory  measures  applicable  to  such  ship- 
ments upon  their  arrival  whether  in  original  packages  or  other- 
wise and  which  in  effect  nullified,  so  far  as  intoxicating  liquors 

41.  Bowman  v.  Chicago  &  N.  W.  R.  48.  Adams  Express  Co.  t.  Ken- 
Co..  125  U.  S.  465.  8  Sup.  Ct.  080,  lucky.  21  I  U.  S.  218,  29  Sun.  Ct.  633, 
1602,  31  L.  Ed.  700.  reversing  Adams  Express  ■  •>.  v.  Com- 

42.  Cincinnati,  X.  0.  &   T.  P.  P..  monwealth,    124   Ky.    182,   87    S.   W. 

Co.    v.   Commonwealth,    31    Ky.    L.   R.  1111. 
Or. 4.    104    S.   W.   304. 


68 


CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.        [§  54 


were  concerned,  prior  decisions  as  to  rights  of  sale  of  these  ship- 
ments in  the  original  packages."  In  reference  to  the  "  Wilson 
Act,"  4i  the  validity  of  which  was  sustained,45  it  is  said  that  it 
goes  far  to  remove  intoxicating  liquors  from  the  protection  of 
the  commerce  clause  of  the  United  States  Constitution  and  to 
give  full  effect  to  state  legislation  concerning  them.46  And  in  a 
recent  case  in  the  United  States  Supreme  Court  it  is  said :  "  It  is 
settled  by  a  line  of  decisions  of  this  court,  noted  in  the  margin, 
that  the  purpose  of  the  Wilson  Act  as  a  regulation  by  Congress 
of  interstate  commerce,  was  to  allow  the  States,  as  to  intoxicating 
liquors,  when  the  subject  of  such  commerce,  to  exert  ampler 
power  than  could  have  been  exercised  before  the  enactment  of  the 
statute.  In  other  words  that  Congress  sedulous  to  prevent  its 
exclusive  right  to  regulate  commerce  from  interfering  with  the 
power  of  the  states  over  intoxicating  liquor,  by  the  Wilson  Act 
adopted  a  special  rule  enabling  the  states  to  extend  their  authority 


44.  Act.  Aug.  8,  1890  C.  728,  26 
Stat.  313;  U.  S.  Comp.  St.  1901,  p. 
3177. 

This  act  was  entitled  "  an  act  to 
limit  the  effect  of  the  regulation  of 
commerce  between  the  several  states 
and  with  foreign  countries  in  certain 
instances."  It  provided  as  follows: 
"That  all  fermented,  distilled  or 
other  intoxicating  liquors  transported 
into  any  State  or  Territory,  or  re- 
maining therein  for  use,  consumption, 
sale  or  storage  therein,  shall  upon 
arrival  in  such  State  or  Territory  be 
subject  to  the  operation  and  effect  of 
the  laws  of  sur-h  State  or  Territory 
enacted  in  the  exercise  of  its  police 
powers,  to  the  same  extent  and  in  the 
same  manner  as  though  such  liquids 
or  liquors  had  been  produced  in  such 
State  or  Territory,  and  shall  not  be 
exempt  therefrom  by  reason  of  being 
introduced  therein  in  original  pack- 
ages or  otherwise."    2G  St.  313. 


45.  In  Re  Rahrer,  140  U.  S.  545,  11 
Sup.  Ct.  865,  35  L.  Ed.  572. 

46.  State  v.  J.  P.  Bass  Pub.  Co.,  104 
Me.  288,  71  Atl.  894,  wherein  the 
court  says  in  this  connection  per 
Emery,  C.  J.:  "Decisions  of  United 
States  Courts  upon  the  subject  made 
prior  to  the  passage  of  that  act  are 
now  inapplicable  and  need  not  be  con- 
sidered. Since  the  Wilson  Act  the 
state  may  prevent  the  sale  within  its 
limits  of  intoxicating  liquors  in  the 
original  package,  and  to  that  end  may 
seize  them  in  such  packages  the  mo- 
ment they  are  delivered.  Also  to  fur- 
ther the  welfare  of  its  people,  the  state 
may  now  prohibit  the  solicitation 
within  the  state  of  orders  for  the 
purchase  of  liquors  without  the  state. 
This  seems  to  be  settled  by  the  recent 
decision  of  the  United  States  Su- 
premo Court  in  Delamater  v.  South 
Dakota,  205  U.  S.  93,  27  Sup.  Ct. 
447,  51  L.  Ed.  724." 


§§55,50]    CONSTITUTIONAL  PROVISIONS  AFFECTING  LAV.  gg 

as  to  such  liquor  shipped  from  other  states  before  it  became  com- 
mingled  with  the  mass  of  other  property  in  the  State  by  a  sale 
in  the  original  package."  47  Under  the  Wilson  Act  the  power  of 
the  state  to  prohibit  the  sale  of  liquor  within  its  borders  applies 
to  liquor  shipped  from  one  state  into  another  after  delivery  and 
before  the  sale  in  the  original  package.48 

§  55.  Wilson  Act  does  not  prevent  right  to  order  and  receive. 

The  Wilson  Act  was  not  intended  to  and  did  not  recog- 
nize the  right  of  the  legislature  of  a  state  to  forbid  one  to 
contract  for  liquors  in  another  state  and  receive  the  liquors  in  his 
own  state  for  his  own  use  and  not  for  sale.49  The  state  cannot 
prohibit  a  citizen  of  the  state  from  ordering  and  having  shipped 
to  him  from  another  state  intoxicating  liquor  for  his  own  personal 
use  and  consumption  and  which  is  not  intended  for  sale,  barter 
or  exchange.50 

§  56.  Statute  limiting  right  to  order — application  to  state  official. 
A  statute  which  provides  that  one  who  desires  to  order  liquor 
for  his  own  use  must  first  communicate  his  desire  to  a  state 
chemist  and  which  deprives  any  non-resident  of  the  right  to 
ship  by  means  of  Interstate  commerce  any  liquor  into  the  state 


47.  Delamater  v.  South  Dakota,  205  L.  Ed.  925 ;     Foppiano  v.  Speed,  199 

U.  S.  93,  98,  27  Sup.  Ct.  447,  51  L.  U.  S.  501,  26  Sup.  Ct.  138,  50  L.  Ed. 

Ed.  724.     Per  Mr.  Justice  White.   The  288;    Heyman    v.    Southern    Ry.    Co., 

cases  referred  to  in  the  above  extract  203  U.   S.   270,  27   Sup.   Ct.   104,   51 

arc  the  following:     In  re  Rahrer,  140  L.  Ed.  178. 

U.  S.  545,  11  Sup.  Ct.  865,  35  L.  Ed.  48.  Dolamator  v.  South  Dakota,  205 

572;  Rhodes  v.  Iowa,  170  U.  S.  412,  U.  S.  93,  27  Sup.  Ct.  447,  51  L.  Ed. 

18    Sup.    Ct.    664,    42    L.    Ed.    1088;  724. 

Vance  v.   Vandercook  Co.,   170  U.   S.  4f>.  Dolamator  v.  South  Dakota,  205 

438,  18  Sup.  Ct.  674.  42  L.  Ed.  1100;  V.  S.  93,  27  Sup.  Ct.  447.  51   L.  Ed. 

American    Express    Co.   v.    Iowa,    196  724:     Vanco  v.   Vandercook   Co.,   170 

U.  S.  133,  24  Sup.  Ct.  182,  49  L.  Ed.  U.  S.  438,  18  Sup.  Ct.  674,  42  L.  Ed. 

417;  Adams  Express  Co.  v.  Iowa,  196  1100. 

U.  S.  147,  25  Sup.  Ct.  185,  49  L.  Ed.  BO.  Schwedes      v.      State,       (Okla. 

424;  Pabst  Brewing  Co.  v.  Crenshaw,  1909),   99   Pac.  894. 
198    U.    S.    17,    25    Sup.    Ct.    552,    49 


70  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.         [§   57 

unless  previous  authority  is  first  obtained  from  certain  officers  of 
that  state  is  in  these  respects  unconstitutional  as  it  subjects 
the  right  of  the  non-resident  to  ship  liquors  into  the  state  and  of 
the  resident  of  the  state  to  receive  for  his  own  use  to  conditions 
which  are  wholly  incompatible  with  and  repugnant  to  the  ex- 
istence of  the  right  which  the  statute  itself  acknowledges.51 

§  57.  Wilson  Act — words  "  upon  arrival  "  construed. 

The  Wilson  Act  was  not  intended  and  did  not  cause  the  power 
of  the  state  to  attach  to  an  interstate  commerce  shipment  whilst 
the  commerce  was  in  transit  and  until  its  arrival  at  the  point  of 
destination  and  delivery  there  to  the  consignee.52  In  the  pro- 
vision in  the  act  of  Congress  of  Aug.  8,  1890  that  liquors  shipped 
from  one  state  into  another  shall  upon  arrival  in  the  latter  state 
be  subject  to  the  laws  of  that  state  the  words  "  upon  arrival " 
are  not  to  be  construed  as  meaning  the  entrance  within  the 
borders  of  the  state  but  as  meaning  on  reaching  their  desti- 
nation.53 So  the  rule  that  transportation  of  an  article  is  not 
complete  until  delivery  to  the  consignee  is  said  to  be  a  settled 
one.54  So  where  it  appeared  than  an  interstate  shipment  of 
liquors  was  seized  after  it  had  been  taken  by  a  drayman  from 
the  depot  and  loaded  on  his  dray  it  was  held  error  to  refuse  to 
instruct  the  jury  as  follows:  "Gentlemen  of  the  jury  you  are 
instructed  in  this  case  to  return  a  verdict  of  not  guilty,  for  the 
reason  that  the  barrels  in  question  were  never  delivered  to  the 
defendant,  and  for  the  reason  that  the  shipment  in  question 
was  and  is  protected  by  the  interstate  commerce  clause  of  the 
constitution   of   the   United    States   until   the   same   is    delivered 

51.  Vance  v.  Vandercook  Co.  170  53.  Hudson  v.  State,  (Okla.  1909), 
U.  S.  438,  455,  18  Sup.  Ct.  674,  42  101  Pac.  275,  citing  In  re  Landlord, 
L.  Ed.  1100.  57   Fed.   572:      See  McCord  v.   State, 

52.  Adams    Express    Co.    v.    Ken-  Okla.   1909),   101   Pac.  280. 

tucky,    214    U.    S.    218,    29    Sup.    Ct.  54.  Adams    Express    Co.    v.    Com- 

633;  Rhodes  v.  Iowa,  170  U.  S.  412,  monwealth,  214  U.  S.  218,  29  Sup  Ct. 
42  L.  Ed.   1088,   18  Sup.  Ct.  664.  633. 


S  8  58  59]    CONSTITUTIONAL  PROVISIONS  AFFECTING   LAWS.         71 

to  the  consignee  and  the  state  authorities  have  no  jurisdiction 
over  the  same  at  the  time  it  was  seized."  55  And  it  has  been 
decided  that  a  citizen  of  one  state  has  the  right  to  order  and  re- 
ceive a  shipment  of  whisky  from  another  stale  and  to  convey  the 
same  from  the  depot  at  which  the  shipment  may  arrive,  in  the 
original  package  to  his  home,  as  such  conveyance  is  a  part  of  the 
interstate  commerce  transportation.56  And  a  statute  prohibiting 
the  conveyance  of  intoxicating  liquor  from  one  place  within  the 
state  to  another  place  therein  does  not  include  the  transportation, 
after  liquor  has  been  received  at  the  railroad  station,  to  the  home 
of  the  consignee.57 

§  58.  State  statute  as  to  place  of  delivery  and  sale. 

A  statute  which  makes  all  shipments  of  spirituous  liquors  penal 
and  provides  that  the  place  where  the  money  is  paid  or  the  goods 
delivered  shall  be  regarded  as  the  place  of  sale  and  that  the  car- 
rier and  his  agents  selling  or  delivering  such  goods  shall  be  liable 
jointly  with  the  vendor  thereof  is  in  its  application  to  liquors 
shipped  from  another  state  unconstitutional  as  being  an  attempt 
to  regulate  interstate  commerce.  And  in  such  a  case  evidence 
is  held  to  be  immaterial  which  shows  that  the  liquors  were  not 
ordered  by  the  consignee  or  that  the  agent  of  the  carrier  held 
them  for  a  few  days  as  an  accommodation  to  the  consignee.58 

§  59.  Soliciting  of  orders. 

In  an  early  ease  in  the  United  States  Supreme  Court  it  is  de- 
clared that  the  legislature  of  a  state  in  which  the  traffic  in  intoxi- 


55.  McCord  v.  State,  (Okla.  1909),  57.  High    v.    State,    (Okla.    1909), 
101  Pac.  280.  101   Pac.   115. 

56.  High  v.  State,  (Okla.  1909),  •"»*.  Adams  Express  Co.  v.  Ken- 
101  Pac.  11.",:  Moreland  v.  State,  tucky,  206  1'.  S.  12!).  27  Sup.  Ct.  606, 
(Okla.  1909)  101  Pac.  138:  Hudson  51  L.  Ed.  987;  See  also  Herman  v. 
v.  State  (Okla.  1909),  101  Pac.  275;  Southern  Railway  Co.,  203  U.  S. 
McCord  t.  State,  (Okla.  1909),  101  270,  27  Sup.  Ct.  104,  51  L.  Ed.  178. 
Pac.  280. 


72  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.         [§   59 

eating  liquors  is  permitted  cannot  by  statute  discriminate  against 
persons  who  not  having  their  principal  place  of  business  within  the 
state,  engage  in  the  business  of  selling  or  of  soliciting  the  sale  of 
liquors  to  be  shipped  into  the  state.59  And  in  a  recent  case  in 
Texas  it  is  held  that  a  statute  which  prohibits  the  soliciting  of 
orders  for  intoxicating  liquors  in  local  option  territory  and  which 
makes  no  excepton  in  favor  of  parties  who  reside  outside  the  state 
but  punishes  alike  whether  the  solicitation  is  for  state  or  inter- 
state shipments  is  in  violation  of  the  Federal  Constitution  and  the 
Wilson  Act  regulating  interstate  commerce.60  And  in  another 
case  it  was  also  declared  that  a  state  has  no  right  to  prohibit  the 
solicitation  within  the  state  of  orders  for  goods,  such  as  intoxicat- 
ing liquors,  which  are  without  the  state  as  this  is  an  interference 
with  interstate  commerce.61    But  in  a  late  case  in  the  United  States 


59.  Walling  v.  Michigan,  116  U.  S. 
446,  6  Sup.  Ct.  454,  29  L.  Ed.  691. 

60.  Ex  parte  Massey,  49  Tex.  Cr. 
R.  60,  92  S.  W.  1083.  The  court  said: 
"  Under  the  interstate  commerce 
clause  of  our  Federal  Constitution, 
our  legislature  is  powerless  to  pre- 
vent shipments  of  goods  into  this 
state  from  another  state,  under  a 
contract  between  a  citizen  of  this  state 
and  the  citizens  of  the  state  from 
which  the  goods  may  be  shipped." 
Per  Davidson,  J. 

It  was  also  held  in  this  case  that 
where  a  constitutional  provision 
merely  prohibits  the  sales  of  intoxi- 
cating liquors  in  local  option  terri- 
tory a  statute  which  prohibits  also 
the  soliciting  of  sales  in  such  terri- 
tory is  held  to  be  unconstitutional. 
The  court  said :  "  It  is  not  the  law, 
if  the  party  solicits  or  takes  the  order 
in  a  local  option  district  to  deliver 
intoxicants  in  such  district,  that  it 
constitutes  a  sale.  If  this  is  the 
final  termination  of  the  matter  there 
would  be  no  sale.  There  might  not 
even    be   a   contract    for    a    sale.      If 


the  solicitation  ended  the  transaction, 
there   would   be   no   contract.      Why? 
Because    the    parties    solicited   either 
failed  or  declined  to  accept  the  terms 
offered    by    the    party    soliciting    the 
order.      If    there    was   an    acceptance 
and  an  order  given,  still  there  would 
be  nothing  but  a  contract  to  deliver 
or  sell  at  some  future  period.     This 
is     not     sufficient.      Why?       Because 
there  must  be  a  sale,  and  such  sale 
must  be  within  the  prohibited  terri- 
tory in  order  to  come  within  the  pro- 
visions of  article  16,  section  20  of  the 
Constitution.     This  section  alone  fur- 
nishes the  authority  for  local  option 
legislation   and    limits   the   authority 
of   the   legislation  to   the  prohibition 
of  sale  '  within  the  prescribed  limits  ' 
where  the  law  is  operative.     It  is  a 
well-known    rule    sanctioned    by    all 
legal   authority   that   where  the   con- 
stitution  provides  Law  a  thing  may 
or  shall  be  done,  such  specification  is 
a   prohibition   against   its  being  done 
in    any   other   manner."     Per   David- 
son, J. 

61.     Ex  parte  Loeb,  72  Fed.  657. 


§59]       CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.  73 

Supreme  Court  the  doctrine  is  affirmed  that  under  the  Wilson  Act 
the  State  has  authority  to  forbid  agents  of  non-resident  liquor 
dealers  from  coming  within  its  borders  to  solicit  contracts  for 
the  purchase  of  intoxicating  liquors  and  it  is  said  that  such  au- 
thority must  be  as  complete  and  efficacious  as  is  such  authority 
in  relation  to  contracts  of  insurance,  especially  in  view  of  the 
conceptions  of  public  order  and  social  well  being  which  it  may  be 
assumed  lie  at  the  foundation  of  regulations  concerning  the 
traffic  in  liquor.62  So  in  a  recent  case  in  Kansas  it  is  decided 
that  a  Missouri  corporation  whose  traveling  salesmen  solicit  and 
receive  orders  in  Kansas  for  intoxicating  liquors,  which  orders 
when  accepted  by  the  corporation  are  filled  by  shipping  the  liq- 
uors F.  O.  B.  cars  at  St.  Louis  to  the  purchasers,  is  engaged  in 
business  in  Kansas  and  subject  to  the  provisions  of  the  statutes 
relating  to  foreign  corporations  doing  business  in  the  latter  state, 
and  acts  in  violation  of  the  local  statutes  as  to  soliciting  orders 
for  intoxicating  liquors  which  statutes  were  not  repugnant  to  the 
commerce  clause  of  the  Federal  constitution.63  And  in  another 
late  case  in  Kansas  it  has  been  declared  that  the  owner  of  in- 
toxicating liquors  in  one  state  cannot  by  virtue  of  the  interstate 
commerce  clause  of  the  federal  constitution  go  into  another  state 
or  send  his  agent  there  and,  in  defiance  of  the  laws  of  the  latter 
state,  carry  on  the  business  of  soliciting  orders  or  proposals  for 
the  purchase  of  such  intoxicating  liquors  to  be  shipped  into  such 
latter  state  without  incurring  the  penalties  of  such  laws.64     And 

62.  Delamater  v.  South  Dakota,  tion  giving  power  to  Congress  to  reg- 
205  U.  S.  93,  27  Sup.  Ct.  447,  51  L.  ulate  interstate  commerce  are  not, 
].;,]    724.  under  the  Wilson  Act,  violated  by  a 

63.  State  v.  Lemp  Brewing  Co.  statute  which  provides  that:  "Any 
(Kan.    1909),   102  Pac.   504.  person  who  shall  take  or  receive  any 

64.  CriMer  v.  Shepler,  (Kan.  order  for  intoxicating  liquors  from 
1909),  101  Pac.  619,  citing  and  quot-  any  person  in  this  state,  other  than 
ing  from  Delamater  v.  South  Dakota.  a  person  authorized  to  sell  the  same 
205  U.  S.  93,  99,  27  Sup.  Ct.  4  17.  4  l«.  as  in  this  act  provided,  or  any  person 
51  L.  Ed.  724,  and  holding  that  the  who  shall  directly  or  indirectly  con- 
provisions    of    the    Federal    Constitu-  tract  for  the  sale  of  intoxicating  liq- 


74  CONSTITUTIONAL  PROVISIONS  AFFECTING  LAWS.        [§  GO 

in  a  recent  case  in  Georgia  it  is  decided  that  under  the  provisions 
of  the  Wilson  Act  a  statute  which  (in  aid  of  a  police  regulation 
prohibiting  the  sale  of  intoxicating  liquors  within  a  state  or  any 
portion  thereof)  prohibits  the  solicitation  of  orders  is  not,  for  the 
n  ason  that  such  statute  conflicts  with  the  power  of  Congress  to 
control  and  regulate  interstate  commerce,  void  as  to  orders  solicited 
in  said  state,  although  the  seller  and  the  liquor  to  be  sold  may 
both  be  in  another  state;  because  such  regulation  in  no  wise  en- 
croaches upon  the  power  of  Congress  to  control  interstate  com- 
merce. The  exercise  of  such  state  regulation,  so  far  from  being 
in  conflict  with  the  power  of  Congress  to  regulate  interstate  com- 
merce is  expressly  allowed  by  law.65  Personal  solicitation  within 
the  meaning  of  such  a  statute  is  held  to  include  any  act  done  by 
the  seller  himself  which  may  tend  to  effect  a  sale  as  contrasted 
with  any  like  act  by  an  agent  of  the  seller  tending  to  a  similar 
result.  And  in  construing  this  term  it  is  held  that  the  solicita- 
tion of  orders  by  mail  is  included  if  the  seller  himself  in  person 
writes  or  mails  the  letters  received  by  the  prospective  buyer.66 

§  60.  As  to  right  to  advertise. 

It  has  ben  decided  that  since  the  passage  of  the  Wilson  Act  the 
state  may  forbid  the  advertising  in  newspapers  published  within 
the  state  of  intoxicating  liquors  which  are  not  within  the  state  as 
well  as  those  which  are  within  the  state.67  And  a  statute  which 
makes  it  unlawful  to  solicit  orders  for  sales  of  intoxicating  liquors 
in  any  section  of  the  state  wherein  it  would  be  unlawful  to  grant 
a  license  for  such  sales,  either  by  means  of  agents,  circulars, 
posters  or  newspaper  advertisements  is  held  to  be  a  valid  exercise 

uors   with   any  person   in   this   state,  65.  Rose  v.  State,  4  Ga.  App.  588, 

other  than  a  person  authorized  to  sell  62  S.  E.  117. 

the  same,   shall  be  deemed  guilty  of  60.  Rose  v.  State,  4  Ga.  App.  588, 

a   misdemeanor,   and  upon  conviction  62  S.  E.   117. 

thereof,  shall  be  punished  therefor  as  67.  State   v.   J.    P.    Bass   Pub.   Co. 

provider!  in  this  act  for  selling  intoxi-  104   Me.   288,   71   Atl.  894. 

eating  liqu< 


§  <)0J 


CUNSTITLTIONAL  I'UOVISIONS  AFFECTING    LAWS. 


75 


of  the  police  power  of  the  state  and  does  nol  conflicl  with  the 
power  of  Congress  under  the  federal  Constitution  "to  establish 
post  offices  and  posl  roads"  and  "to  designate  what  shall  he  car- 
ried by  and  what  excluded  from  the  United  States  mails." 


C8.  Zinn  v.  State,  (Ark.  1008),  114 
S.  W.  227.  The  court  said:  "The 
statute  does  not  relate  to  that  sub- 
ject at  all.  It  simply  prohibited  the 
soliciting  of  orders  for  the  Bale  of 
intoxicating  liquors  in  territory 
where  the  sale  of  such  liquors  is  pro- 
hibited. The  graveness  of  the  offense 
is  the  soliciting  of  orders  for  the  sale. 
It  matters  not  how  the  circular  for 
that  purpose  reaches  the  prohibited 
territory,  and  the  statute  does  not 
undertake  to  designate  or  condemn 
the    manner   by   which   the    circulars 


may  be  carried  into  or  exclude! 
from  the  prohibited  territory.  It  i- 
the  presence  of  the  circular  there  for 
the  unlawful  purpose  of  soliciting 
that  the  statute  denounces  and  not 
the  method  by  which  tiny  may  be 
conveyed  there  or  distributed.  Had 
the  statute  made  the  use  of  the 
United  States  mail  for  sending  cir- 
culars into  districts  where  the  sale 
of  intoxicating  is  prohibited  the  crime 
then  the  argument  of  the  learned 
counsel  for  the  appellant  would  be 
sound."     Per  Wood,  J. 


7G  CONSTRUCTION  OF  STATUTES  GENERALLY.  [§  61 


CHAPTER  IV. 

CONSTRUCTION  OF  STATUTES  GENERALLY. 

Section  61.  Constitutional  provisions   as  to  title  and  subject-matter  of  act 
construed. 

62.  Local  or  special  laws  generally. 

63.  Laws  to  be  general  and  uniform. 

64.  Intoxicating  liquor  statutes — construction  of  generally. 

65.  Construing  laws  together. 

66.  Construction  of  act — Intent  of  legislature. 

67.  Where  part  of  act  invalid. 

68.  As  to  exceptions  in  statute. 

69.  Statutes  affixing  penalties  strictly  construed. 

70.  Construction  of  amendments  to  statutes. 

71.  Repealing  laws  generally. 

72.  Repeal  by  implication. 

73.  Statute  denouncing  two  separate  offenses. 

74.  Political    subdivisions    of    state — judicial    notice    in    construing 

statute. 

75.  One  not  affected  by  law  cannot  question  validity. 

Sec.  61.  Constitutional  provisions  as  to  title  and  subject-matter  of 
act  construed. 

Ordinarily  under  a  constitutional  provision  that  an  act  shall 
contain  no  matter  variant  from  the  title,  it  is  sufficient  if  the  title 
is  descriptive  generally  of  the  purposes  of  the  act.  It  is  not  neces- 
sary that  it  should  particularize  the  general  provisions  contained 
in  the  body  of  the  act.1  So  an  act  prohibiting  the  sale  and  vend- 
ing of  spirituous  liquors  may  declare  what  are  such  liquors  and 
such  declaration  does  not  make  the  act  unconstitutional  as  refer- 
ring to   more  than   one  subject   matter.2      And   in   an   act   pro- 

1.  Howell   v.   State,   71    Ga.   224.  ing  that  an  act  the  title  of  which  is  to 

2.  Howell  v.  State,  71  Ga.  224,  hold-       prohibit  the  sale  of  intoxicating  liq- 


§  Oil  CONSTRUCTION  OF  STATUTES  GENERALLY.  77 

hibiting  the  sale  of  intoxicating  liquors  the  word  "  sale  "  is  to 
be  construed  in  its  broad  and  comprehensive  sense  and  includes 
what  is  commonly  known  as  barter  and  exchange.3     Again  where 
the  title  of  an  act  is  to  prohibit  the  sale  of  intoxicating  liquors 
the  fact  that  such  title  does  not  in  terms  refer  to  a  penalty  for  the 
violation  of  the  act  docs  not  make  the  act  invalid  as  containing 
matter  different  from  that  expressed  in  its  title  because  it  pro- 
vides a  penalty  for  such  violation,  as  the  word  "  prohibit  "  in 
the  title  is  sufficiently  broad  to  authorize  such  legislation  and  a 
penalty  is  germane  to  the  scheme  of  prohibition  as  indicated  by 
the  title.4     And  an  act  to  prohibit  the  sale  of  liquor  is  not  un- 
constitutional because  in  the  body  of  the  act  it  is  made  unlawful 
also  to  give  or  loan  spirituous,  vinous  or  malt  liquors.5     And  the 
selling  and  vending  of  spirituous  liquors  being  the  single  subject 
matter  of  an  act  a  specification  of  divers  localities  in  which  the 
sale  is  prohibited  does  not  render  the  act  unconstitutional  on  the 
ground  that  it  embraces  more  than  one  subject  matter,  it  being 
declared  that  as  the  legislature  has  the  power  to  make  the  in- 
hibition general  it  may  likewise  confine  it  to  certain  specified  lo- 
calities.6    And  in  a  recent  case  it  is  decided  that  under  a  con- 
stitutional provision  that  "  Every  act   or  resolution  having  the 
force  of  law  must  relate  to  but  one  subject,  and  that  shall  be  ex- 
pressed in  the  title  "  a  provision  of  an  act  which  goes  beyond  the 
title  thereto  is  null  and  void.7     But  an  act  the  title  of  which  was 
"  to  regulate  the  sale  of  spirituous  or  intoxicating  liquors  of  any 

uors  within  certain  limits  is  not  un-  sale  of  intoxicating  liquors  author- 
constitutional  as  containing  matter  izes  legislation  upon  the  subject  of 
different  from  the  title  because  it  pro-  barter. 

vides    that    no    intoxicating    liquors,  -*•  James  v.   State,   124  Oa.  72,  52 

plantation  hitters,  or  other  intoxicat-  S.    E.    — ' > r> . 

ing  liquors  sold  under  the  name  of  pat-  n-  Stickrod    v.    Commonwealth,    86 

ent    medicine    shall    lie     sold    within  Ky.  285,  •",  S.  \V.  580. 

such  limits.  <;-  Howell    v.    State.   71    Ga.   224. 

3.  James  v.  State.   124  Ga.  72.  52  7.  Croxton  v.  Truesdel,  75  S.  C.  41S, 

S.  E.  20.-).  holding  that  the  word  sale  56  S.  E.  45. 
in  the  title  of  an  act   to  prohibit  the 


7S  STRUCTION  OF  STATUTES  GENERALLY.      [§§   (J2,  63 

kind  in  the  County  of  Polk"  was  held  to  be  unconstitutional  in 
so  far  as  it  attempted  to  entirely  prohibit  the  sale  of  such  liquors 
it  being  declared  that  the  title  gave  no  intimation  that  the  act 
intended  to  absolutely  prohibit  such  a  sale  and  that  therefore  it 
contained  matter  different  from  that  expressed  in  the  title.8 


§  62.  Local  or  special  laws  generally. 

The  validity  of  a  statute  is  frequently  assailed  upon  the  ground 
that  it  is  a  local  or  special  law  and  hence  unconstitutional.9  In 
this  connection  it  has  been  decided  that  a  law  regulating  the  sale 
of  liquors  within  a  particular  locality,  is  not  unconstitutional 
because  local,  the  only  limitation  upon  a  local  act  being  that  it 
must  bear  on  all  alike  within  the  designated  locality.10  And  in 
Alabama  it  has  been  decided  that  an  act  which  was  prohibitory 
in  its  character  was  not  unconstitutional  on  the  ground  that  it 
was  a  local  and  not  a  general  law  because  of  the  fact  that  it  did 
not  go  into  operation  in  all  the  counties  in  the  state  until  January 
1,  1909,  while  in  some  of  the  counties  it  was  to  take  effect  a  year 
previous.11 

§  63.  Laws  to  be  general  and  uniform. 

A  law  is  general  and  uniform  that  applies  to  all  persons  and 
things  coming  within  its  provisions   throughout   the  state.      Its 

s.  Crabb   v.   State,   88   Ga.   584,   15  «•  State    v.    Sheggs,     (Ala.    1908) 

S.  E.  455.     The  act  which  was  entit-  46   So.   2G8    wherein   the   court   said: 

led  as  above  provided  that  in  case  an  "  On   January   1,    1909,   a   reasonably 

election   which  was  to  be  held  under  near  and   definite  date,  the   law  will 

it-    provisions  should  result  in  favor  be   actually   effective   from   border   to 

of  a  "  restriction"  of  the  sale  of  such  border  of  the   state.     While  in   1908 

liquors    then    it    should    be    a    misde-  the  law  will  not  be  operative  in  every 

meanor  to  sell  liquors  at  all  in  that  county   in   the   state,   but  will   begin- 

county.  ning    with    the    succeeding    year,    be 

9.  Persons  who  derive  all  their  au-  operative  throughout  the  whole  state, 
thority  under  a  special  act  will  not  be  merely  postpones  for  such  definite  and 
permitted  to  assail  its  constitution-  reasonably  limited  period  the  partial 
nlity.  State  v.  Cain,  78  S.  C.  348,  effectiveness  of  the  law,  yet  the  law 
58  S.  E.  937.  is    a    state    law    applicable    in    due 

10.  Guy  v.  Commissioners,  122  N.  season  to  every  county  in  the  state." 
C.  471,  29  S.  E.  771.  Per  McClellan,  J. 


§§  64  65]     CONSTRUCTION  OF  BTATT  TES  GENERALLY.  79 

uniformity  consists  in  the  fact  that  no  person  or  thing  affected 
by  it,  is  exempt  from  its  operation.12  So  the  legislature  may  de- 
termine the  forms  of  the  traffic  that  require  to  be  regulated  as  a 
source  of  evil  and  may  draw  a  line  between  the  distillery  and 
brewery  on  the  one  hand  and  the  saloon  on  the  other  and  such 
a  statute  is  not  subject  to  the  objection  that  it  is  unconstitutional 
in  that  it  is  not  general  and  uniform  in  its  operation.15 

§  64.  Intoxicating  liquor  statutes— construction  of  generally. 

Statutes  designed  to  regulate  the  sale  of  intoxicating  liquors  are 
to  be  construed  and  interpreted  by  the  rules  having  application 
to  statutes  generally.14  This  rule,  however,  is  held  in  Iowa  to 
be  subject  to  the  modification  provided  by  the  code  that  it  shall 
be  the  duty  of  courts  and  jurors  to  construe  the  general  chapter 
relating  to  the  subject  of  intoxicating  liquors  so  as  to  prevent 
evasion.15 

§  65.  Construing  laws  together. 

In  construing  an  intoxicating  liquor  law  the  principle  applies 
that  all  laws  upon  a  subject,  or  germane  to  it,  shall  be  construed 
together,  so  that  all  may  be  given  effect  and  produce  a  harmo- 
nious system,  and  it  will  be  presumed  that  the  legislature  in  enact- 
ing a  law  does  so  with  reference  to  existing  laws.10  Where  there 
are  two  acts  upon  the  same  subject  the  rule  is  to  give  effect  to 
both  if  possible.17  Where  a  subsequent  law  was  nothing  more  or 
less  than  an  amendment  to  a  former  excise  law  and  added  thereto 
merely  a  provision  as  to  the  giving  of  a  second  bend  it  was  held 
that  as  the  language  of  the  subsequent  law  was  as  broad  and  ex- 

12.  Hock  v.  State,  44  Ohio  St.  536,       94  N.  W.  265. 

9  N.  E.  305.  ie-  Ensley    v.    State     (Ind.    S.    C. 

13.  Adler  v.  Whitbeck,  44  Ohio  St.  1909),  88  N.  E.  62.     State  v.  Bailey, 

539    9  N    E.  672;   Webster  v.  State,  124  La. ,  49  So.  1011.     State  v. 

lio' Term.  491,  82  S.  W.  179.  Roberts,   74    X.   H.  476,   69  All.   722. 

14.  Cox  v.  Burnham,  120  Iowa  43,  Paul  v.  State,  (Tex.  Civ.  1907),  106 
94  N.  W.  265.  s    W.   448. 

15.  Cox  v.  Burnham,  120  Iowa  43,  IT.  State  v.  Yewell,  63  Ind.  120. 


80  CONSTRUCTION  OF  STATUTES  GENERALLY.  [§  06 

tensive  in  its  operation  as  that  of  the  original  law  it  followed 
that  the  operation  of  the  one  was  co-extensive  with  the  operation 
of  the  other  and  that  the  former  law  being  operative  in  a  certain 
city  the  subsequent  one  was  also.18  But  in  construing  revised 
statutes  if  their  language  be  plain  and  free  from  doubt  the  will 
of  the  lawmakers  must  be  ascertained  therefrom  unaided  by  prior 
statutes  on  the  subject  but  if  of  doubtful  meaning  or  import,  or 
susceptible  of  two  constructions,  the  prior  statutes  of  which  the 
new  one  is  the  revision,  may  be  resorted  to  for  the  purpose  of 
rendering  the  latter  clear.19 

§  66.  Construction  of  act — Intent  of  legislature. 

In  the  construction  and  interpretation  of  a  statute  the  courts 
will  consider  the  wrongs  the  legislature  sought  to  remedy  and 
endeavor  if  possible  to  give  it  that  construction  which  will  carry 
out  the  legislative  intention.20  Thus  this  principle  was  applied 
where  a  statute  prohibited  any  "  devices  for  amusement  or  music 
of  any  kind  or  character  "  to  be  permitted  in  a  saloon  it  being 
declared  that  it  was  evidently  the  intention  of  the  legislature  to 
stop  the  alluring  of  people  by  means  of  amusements  or  music 
into  rooms  where  liquors  were  sold  and  that  the  proper  inter- 
pretation of  the  statute  required  a  comma  after  the  word  amuse- 
ment and  that  it  would  be  considered  as  though  a  comma  were  so 
inserted.21  So  the  word  "  town  "  is  often  used  in  a  generic  sense 
as  including  villages,  towns  and  cities  and  when  such  word  is 
used  in  a  general  statute  it  may  include  cities  unless  the  contrary 

is.  State  v.  Fisher,  33  Wis.  154.  20.  Collins  v.  State,  38  Ind.  App. 

19.  State   v.    Stroschein,    90    Minn.  025,   78  N.  E.  851. 

248,  "109  N.  W.  235,  citing  Hamilton  21.  Collins  v.   State,   38  Ind.   App. 

v.  Rathbone,   175  U.  S.  414,  20  Sup.  f.25,   78   N.   E.   851,  holding  that  an 

Ct.  155,  44  L.  Ed.  219,  to  the  effect  indictment     charging    the    defendant 

that  prior  statutes  may  be  resorted  to  with  permitting  a  certain   device  for 

for  the  purpose  of  solving  but  not  to  music  to  wit:  a  Regina  music  box  to 

create    an    ambiguity.  be  and  remain  in  his  saloon  did  not 

state  an  offense  under  the  statute. 


§§  67,68]     CONSTRUCTION  OF  8TAT1  TES  GENERALLY.  81 

appears  from  the  whole  statute  to  have  been  the  intent  of  the  leg- 
islature.2- Again  where  a  statute  which  has  been  judicially  con- 
strued is  reenacted,  the  construction  given  will  be  considered  as  a 
part  of  the  legislative  intent  in  such  reenactment.23 

§  67.  Where  part  of  act  invalid. 

Where  the  different  sections  of  an  act  are  independent  of  each 
other  the  invalidity  of  some  of  the  sections  does  not  necessarily 
invalidate  the  entire  act;  24  but  in  such  a  case  if  the  invalid  part 
can  be  stricken  out  and  the  remainder  can  stand  complete  by 
itself  effect  will  be  given  to  it  by  the  court.25  So  a  prohibitory 
law  although  unconstitutional  as  a  regulation  of  commerce  as  to 
certain  sales,  may  be  constitutional  as  to  other  sales.26  But  where 
the  legislature  passes  an  entire  statute  containing  limitations 
therein  which  are  an  essential  part  thereof  and  such  limitations 
are  in  conflict  with  the  constitution,  the  courts  cannot  emasculate 
the  limitations  and  thus  create  a  different  act  from  that  passed 
by  the  legislature.27 

§  68.  As  to  exceptions  in  statute. 

"Where  the  legislature  passes  an  act  to  regulate,  restrain,  or 
prohibit  the  liquor  traffic  and  such  act  contains  no  exceptions  it 
is  said  that  the  courts  have  no  power  to  make  any,  as  it  is  for  the 
legislature  to  make  the  laws  and  for  the  courts  to  construe  them 
and  not  to  create  laws  of  a  different  character.28  So  a  wholesale 
liquor  dealer  is  subject  to  the  operation  of  a  general  law,  con- 

22.  Mayor  &  Council  v.  Dispensary  24.  State  v.  Gerhardt,  145  Ind.  439", 
Comm'rs.,  L25  Ga.  559,  54  S.   E.  539,  44  N.  E.  469,  33  L.  R.  A.  313. 
holding  that  the  words  "  incorporated  25.  State    v.    Desehamp,    53    Ark. 
towns"    as    used    in    the    Dispensary  400,  14  S.  W.  653. 

act  for  a  certain  county  in  that  state  -'<;.  State  v.  Kibling,  G3  Vt.  G36,  22 

included  a  city  located  in  that  county  Atl.  613. 

and  embraced  every  incorporated  town  27.  State  v.  Elff.  40  Ind.  282. 

or  city  within  the  county.  2S.  Philips      v.      State,      2      Yerg. 

23.  Sopher  V.   State,   169   Ind.   177,  (Tenn.)   488. 
81  N.  E.  013. 


SJ 


CONSTRUCTION  OF  STATUTES  GENERALLY.  [§   69 


taining  no  exceptions  in  his  favor,  which  prohibits  the  selling  of 
intoxicating  liquor  in  a  quantity  less  than  that  specified  therein.29 
And  in  a  case  in  South  Carolina  under  a  statute  which  provided 
that   it   should  be   unlawful  for   any   person  or  persons  to   sell 
spirituous  or  intoxicating  liquors  without  a  license  so  to  do  it 
was  decided  that  as  the  statute  was  positive  and  without  quali- 
fication of  any  kind  the  fact  that  liquor  was  sold  and  used  only 
for  medicinal  purposes  would  not  excuse  a  violation  of  the  act 
and  that  a  person  making  such  a  sale  was  properly  convicted.30 
But  in  an  early  case  in  Indiana  it  is  declared  that  though  a  stat- 
ute prohibiting  the  retailing  of  spirituous  liquors  without  a  li- 
cense contains  no  exception  in  favor  of  a  sale  for  medical  purposes 
yet  in  construing  a  statute  it  is  proper  to  look  to  its  effects,  and 
that  if  a  druggist  upon  a  proper  occasion,  bona  fide  and  with  due 
caution,  retail  liquor  to  be  used  merely  as  a  medicine,  he  will  not 
be  considered  as  having  violated  the  statute.31     And  where  there 
is  an  exception  in  a  statute  it  will  control.     Thus  where  a  pro- 
hibition law  was  passed  which  excepted  from  its  operation  cer- 
tain designated  cities  and  towns  and  provided  that  in  the  places 
so  excepted  liquors  might  be  sold  "  under  the  restrictions  now  pro- 
vided by  the  laws  applicable  to  those  towns  "  it  was  held  that 
prior  acts  under  which  the  liquor  traffic  was  regulated  were  not 
repealed  so  far   as  such  towns   and   cities  were   concerned   and 
that  a  dispensary  act  applicable  to  one  of  the  cities  mentioned 
and  which  was  passed  a  few  days  before,  and  went  into  operation 
subsequent  to  the  passage  of  the  above  act  controlled.32 

§  69.  Statutes  affixing  penalties  strictly  construed. 

Where  a  proceeding  under  a  statute  is  penal  or  quasi  criminal 

29.  State  v.  Benz,  41  Minn.  30,  42  See  also  Hottendorf  v.  State,  89  Ind. 
N.  W.  547.  15. 

30.  State   v.   Tbornburjr,    16    S.    C.  32.  Hubbard  v.  Lancaster,  127  Ala. 
482.  L  28  So.  791,  85  Am.  St.  Rep.  68. 

81.  Donnell    v.    State.    2    Ind.    658. 


§70]  CONSTRUCTION  OF  STATUTES  GENERALLY.  83 

in  character,  the  statute  must  be  given  a  .strict  construction  and 
nothing  can  be  added  thereto  by  inference  or  intendment.  Thus 
it  has  been  so  decided  in  reference  to  proceedings  under  a  stat- 
ute making  it  the  duty  of  the  county  attorney  of  each  county  to 
enforce  provisions  of  the  statute  relating  to  the  mulct  tax  and 
providing  that  the  district  court  or  any  judge  thereof  shall 
suspend  or  remove  from  office  any  county  attorney  who  shall 
willfully  refuse  or  neglect  to  perform  any  such  duty.33  In  the 
application  of  the  rules  that  statutes  affixing  penalties  should 
be  strictly  construed  and  all  doubts  resolved  in  favor  of  the  ac- 
cused and  that  it  is  always  to  be  presumed  that  the  legislature 
will  express  its  intention  in  clear  and  explicit  terms  in  prescrib- 
ing the  obligations  for  a  violation  for  which  a  penalty  is  affixed 
it  has  been  decided  that  the  words  "  it  is  desired  and  required  " 
as  used  in  a  statute  are  not  mandatory.34 

§  70.  Construction  of  amendments  to  statutes. 

In  the  case  of  an  amendment  to  a  statute,  for  the  purpose  of 
determining  the  legislative  intent  and  the  proper  construction 
to  be  given  to  such  amendment  it  is  proper  to  take  into  consider- 
ation the.  prior  statute  and  the  construction  thereof  adopted  by 
the  courts,  and  from  a  consideration  of  the  latest  expression  of 
the  legislative  will  determine  the  construction  that  should  be 
adopted.35  And  an  amended  section  of  an  act  takes  the  place  of 
the  original  section  in  the  act  amended,  and  the  failure  of  the 

33.  Tennant  v.  Kuhlemeier,  (Iowa  California  wine  *  *  *  shall  plainly 
1909),  120  N.  W.  689.  stencil,  hand,  or  have  printed  where 

A    penal    statute    must   be   strictly  it  will  be  easily  seen,  first  '  Pure  Cal- 

construed  and  cannot  be  extended  be-  ifornia  Wine'  and  secondly  his  name 

yond  its  letter.     Klein  v.  Livingston  or  the  firm's  name."    It  was  held  that 

Club,    177    Pa.   St.    224,   35   Atl.    606,  tlii*  act  was  not  of  such  a  mandatory 

34  L.  R.  A.  94,  55  Am.  St.  Rep.  717.  character  as  to  require  that  a  pure 

34.  Ex  parte  Kohler,  74  Cal.  38,  wine  stamp  should  be  placed  upon 
15  Pac.  43G  so  holding  where  a  stat-  pnre  California  wine. 

ute  provided  that  "it   is  desired  and  85.  state  v.  McEntee,  68  Iowa  381, 

required  that  every  grower,  manufac-       27  N.  W.  205. 
turer,  trader,   handler,   or  bottler  of 


84  CONSTRUCTION  OF  STATUTES  GENERALLY.  [§  71 

legislature  in  amending  the  same  section  of  the  original  act  a 
second  time  to  specifically  refer  to  it  as  having  been  amended  by 
the  first  amendatory  act,  does  not  affect  the  validity  or  consti- 
tutionality of  the  second  amendment  of  the  amended  section.36 
Where  by  an  amendment  to  a  statute  which  creates  an  offense  a 
word  or  term  is  used  which  includes  both  the  class  of  cases  under 
the  original  statute  and  some  additional  ones  the  original  statute 
will  not  be  regarded  as  repealed  so  far  as  the  prosecution  of  an 
offense  thereunder  is  concerned.37  So  where  a  statute  makes  it 
an  offense  to  sell  "  spirituous  liquors  "  and  an  amendment  is 
made  substituting  the  word  "  intoxicating  "  for  the  word  "  spirit- 
uous "  but  does  not  in  any  other  way  alter  the  statute,  such  statute 
will  not  be  repealed  by  the  amendment,  as  the  word  "  intoxicat- 
ing "  includes  a  larger  class  of  cases  than  "  spirituous."  38  If 
an  act  which  purports  to  amend  a  section  of  the  code  be  for  any 
reason  unconstitutional,  the  validity  of  the  section  sought  to  be 
amended  is  not  affected  and  an  accusation  the  terms  of  which  are 
such  as  to  come  within  the  provisions  of  the  law  as  it  existed  be- 
fore the  passage  of  the  amendment  may  stand  notwithstanding 
the  invalidity  of  the  amendatory  act.39 

§  71.  Repealing  laws  generally. 

Where  the  repealing  clause  of  a  statute  is  not  general  regarding 
all  laws  but  is  directed  against  laws  in  conflict  or  inconsistent 
therewith  the  statute  will  not  be  construed  as  repealing  a  former 
act  which  is  not  in  conflict  with  it.40  If  the  legislature  enacts  a 
law  in  the  terms  of  a  former  law,  and  at  the  same  time  repeals  the 
former,  this  amounts,  in  law,  to  a  re-affirmance,  and  not  a  repeal, 
and  it  continues  in  force  for  all  purpose  without  intermission.41 

36.  West  &  Co.  v.  Board  of  Com-  39.  Barker  v.  State,  118  Ga.  35, 
missioners,  14  Ida.  353,  94  Pac.  445.  44  S.  E.  874. 

37.  Commonwealth  v.  Herrick,  6  40.  State  v.  Gray,  111  La.  853,  35 
Cush.    (Mass.)    4C,r>.  So.  052. 

38.  Commonwealth  v.  Herrick,  6  41.  State  v.  Sutton,  100  N.  C.  474, 
Cush.   (Mass.)   465.  6   S.   E.  687. 


§  72] 


C0NSTR1  I  TION   OF  BTA1  I   I  ES  GENERALLY. 


85 


And  where  there  is  a  generad  law  regulating  or  restricting  the  sale 
of  liquors  while  the  legislature  may  Buspend  its  operation  yet 
when  it  attempts  to  do  *o  the  suspension  must  be  general  and 
especially  is  this  so  under  a  constitutional  provision  that  no  gen- 
eral law  shall  be  suspended  by  the  legislature  for  the  benefit  of 
any  individual,  corporation  or  association.42  And  in  order  that 
a  general  law  shall  operate  to  repeal  prior  special  legislation  or 
local  laws,  such  laws  should  be  mentioned  in  the  general  law  or 
such  purpose  be  made  manifest  from  its  general  provisions.43 


§  72.  Repeal  by  implication. 

A  statute  is  repealed  by  the  enactment  of  another  statute  which 
is  repugnant  to  it  or  which  covers  the  whole  subject  of  the  former, 


42.  Beauvoir  Club  v.  State,  148  Ala. 
643,  42  So.   1040. 

Where  a  special  statute  is  passed 
subsequent  to  the  enactment  of  a  gen- 
eral law,  the  general  law  will  in  so 
far  as  the  two  laws  are  in  conflict 
be  limited  in  its  operation  thereby. 
Hall  v.  Dunn,  (Oreg.  1908)  97  Pac. 
811. 

An  act  absolutely  prohibiting  the 
sale  of  intoxicating  liquors  in  a  given 
place  suspends  the  operation  in  such 
locality  of  a  general  law  providing 
thai  there  shall  be  no  sale  without  the 
payment  of  a  tax  or  the  procuring  of 
a  license  or  the  performance  of  some 
other  condition.  Barker  v.  State,  118 
6a.  35,   II  S.  E.  S74. 

48.  Williams  v.  Stale.  52  Tex.  Cr. 
371,  107  S.  W.  1121.  See  also  Paul 
v.  state.  (Tex.  Civ.  1907),  L06  S.  W. 
448. 

A  general  law  providing  for 
the  granting  of  licenses  to  conduct 
saloons  in  the  residence  portion  of  a 
city  and  as  to  how  they  may  be  ob- 
tained does  not  repeal  a  provision 
in  a  charter  granted  to  a  city  and 
which  prescribes  the  limits  within 
which  saloons  may  be  maintained  and 


delegates  to  the  city  authorities  the 
power  to  suspend  the  charter  provi- 
sion and  an  ordinance  prohibiting  the 
sale  of  liquors  beyond  the  prescribed 
limits,  but  the  two  acts  will  be  con- 
strued together.  Williams  v.  State, 
52  Tex.  Cr.  371,  107  S.  W.  1121; 
followed  in  Ex  parte  King,  52  Tex. 
Cr.  383,  107  S.  W.  549. 

Where  subsequent  to  the 
enactment  of  a  by-law  by  a  city 
fixing  the  hours  of  closing  sa- 
loons, a  state  law  is  enacted  which 
provides  for  the  licensing  of  saloons 
and  forbids  the  keeping  open  of  a 
saloon,  by  one  licensed  under  the 
act.  between  certain  hours  and  the 
hour  specified  as  the  hour  of  clos- 
ing in  the  statute  is  later  than 
that  in  the  by-law,  and  the  statute 
further  provides  that  all  laws  incon- 
sistent therewith  an-  repealed,  the 
state  law  is  held  to  supersede  the  by- 
law only  as  to  persons  licensed  under 
the  former.  State  v.  Brady,  41  Conn. 
588,  holding  also  that  in  a  prosecu- 
tion for  violation  of  tin'  by-law  it 
must  be  shown  affirmatively  in  de- 
fence that  the  party  prosecuted  was 
licensed  under  the  state  law. 


86  CONSTRUCTION  OF  STATUTES  GENERALLY.  [§  72 

oven  though  there  be  no  repealing  clause  in  the  subsequent  act.44 
So  in  a  case  in  JSTew  York  it  is  declared  in  this  connection :  "  Al- 
though it  is  not  expressly  repealed,  if  it  appears  by  the  provisions 
of  the  later  statute  that  they  were  intended  to  cover  the  subject 
matter  of  the  former  one,  the  latter  will  be  deemed  by  implication 
to  have  been  repealed  or  superseded."  45  Repeal,  however,  by  im- 
plication is  not  favored.46  So  where  a  general  law  prohibits  the 
sale  of  liquor  on  Sunday  anywhere  in  the  state  and  makes  such  a 
sale  an  offense  it  is  not  repealed  by  a  subsequent  local  law  pro- 
hibiting the  sale  of  liquor  in  one  of  the  counties  of  the  state 
excepting  therefrom  a  certain  city  but  making  no  reference  to 
sales  on  Sunday,  it  being  declared  that  there  being  no  permission 
by  such  act  to  sell  on  Sunday  there  is  no  question  of  repeal.47 
And  a  general  statute  without  negative  words  will  not  operate  as 
a  repeal  of  particular  provisions  of  a  former  statute  on  a  special 
subject,  unless  the  two  statutes  are  irreconcilably  in  conflict.48  So 
only  such  part  of  a  local  act  is  repealed  by  implication  by  a  sub- 
sequent general  law  as  is  in  irreconcilable  conflict  therewith.49 
And  in  North  Carolina  it  has  been  decided  that  a  special  act 
establishing  a  dispensary  in  a  certain  town  did  not  repeal  the 
general  statute  as  to  which  it  had  no  other  effect  than  to  prohibit 
the  county  commissioners  from,  issuing  licenses  to  retail  spirituous 

44.  United    mates.— United    States  46.  State  v.  Gray,  111  La.  853,  35 

v.    Warwick,    51    Fed.    280.  So.  952. 

Arkansas. — Galloway    v.    State,    60  "Repeals    by    implication    are    not 

Ark.  302,  30  S.  W.  349.  favored  and  should  never  be  made  ef- 

K'ntuclcy. — Rice  v.  Commonwealth,  fective  where  the  result  would  be  de- 

22  Ky.  Law  Rep.  1793,  61  S.  W.  473.  structive   and   ruinous   of   the   public 

Maryland. — State  v.  Yewell,  G3  Ind.  welfare,    unless   such    construction    is 

121.  imperatively    demanded."      Snead    v. 

Michigan.— Village     of     Sparta     v.  State,    (Tex.    Cr.    1909),    117    S.    W. 

Boorom,  129  Mich,  535,  89  N.  W.  435,  983.     Per  Ramsey,  J. 

90  N.  W.  681.  47.  Flood  v.  State,  103  Md.  692,  63 

New  Hampshire. — State  v.  Perkins,  Atl.  684. 

26  N.  H.  9.  48.  Walter  v.   State,   105  Ind.  589, 

ir,.  People    v.    Vosburgh,    76    Hun.  5  N.  E.  735. 

( X.    Y. )    502,    28    N.    Y.    Supp.    208.  49.  James  v.  State,  124  Ga.  72,  52 

Per  Bradley,  J.  S.  E.  205. 


§§  73  74  75]    CONSTRUCTION  OF  STAT1  TES  GENERALLY.  87 

liquors  in  said  town  and  to  make  such  license  ii    issued  invalid 
and  no  protection  to  any  one  selling  under  it.50 

§  73.  Statute  denouncing  two  separate  offenses. 

The  fact  that  two  separate  offenses  may  be  denounced  in  a 
statute  is  held  not  to  make  it  unconstitutional.51  Thus  a  statute 
was  held  constitutional  which  provided  that  any  person  who 
should  keep  open  a  place  on  Sunday  for  the  sale  of  spirituous 
liquors  or  who  should  on  such  day  sell  or  dispose  of  such  liquors 
should  be  subject  to  a  fine  for  each  offense  and  it  was  held  that 
the  keeping  open  for  sale  was  one  offense  and  the  act  of  selling 
the  other  and  that  each  sale  constituted  a  separate  offense  for 
which  a  separate  arrest  and  trial  could  be  had.52 

§  74.  Political  subdivisions  of  state — judicial  notice  in  construing 
statute. 
The  political  subdivisions  of  a  state  being  prescribed  by  statute, 
the  courts  will  take  judicial  notice  thereof.  Therefore  where  in 
a  general  act  prohibiting  the  sale  of  liquors  an  alphabetical  list 
of  counties  is  given,  each  name  being  followed  by  a  list  of  the 
places  within  a  certain  distance  of  which  the  sale  or  manufacture 
of  liquor  is  prohibited,  the  courts  will  take  judicial  notice  of  the 
fact  that  the  names  in  alphabetical  order  are  the  names  of  counties 
although  the  word  "  county  "  does  not  appear  in  the  list.53 

§  75.  One  not  affected  by  law  cannot  question  validity. 

One  cannot  be  heard  to  say  that  a  law  is  invalid  and  unconsti- 
tutional upon  a  ground  which  in  no  way  affects  his  rights.     So 

co.  state  v.  Smith,  126  N.  C.  1057,  •"'••  Commonwealth  v.  McCann,  123 

35   S.   E.   015,   holding  that  one  who  Ky.  247.  94   S.   W.   645. 

violated  the  general   law  against  re-  52.  Commonwealth  v.  McCann,  123 

tailing   spirituous   liquors   without   a  Ky.  217.   94   S.   W.   645. 

license   and   also   the    dispensary    act  BS.  State   v.   Snow,   117   N.  C.   774, 

for    the    town    was    indictable    under  23  S.  E.  322. 
either  act. 


gg  CONSTRUCTION  OF  STATUTES  GENERALLY.  [§  75 

where  one  is  seeking  to  obtain  the  privilege  of  selling  liquor  by 
retail,  or  as  a  beverage,  it  has  been  decided  that  he  cannot  question 
the  constitutionality  of  the  law  which  denies  him  that  privilege 
upon  the  ground  that  it  forbids  the  sale  of  liquor  even  for  religious 
or  medicinal  purposes,  it  being  declared  that  prescriptions  are  not 
filled  in  bar  rooms,  nor  the  communion  table  supplied  from  such 
places.54  And  the  objection  that  no  exception  is  made  in  a  statute 
for  1"  -ors  for  medicinal  or  sacramental  purposes  or  for  sales  in 
original  packages  imported  from  other  states  is  not  available  to 
one  who  is  not  prosecuted  for  selling  liquor  for  such  purposes  or 
in  such  manner.55 

54.  Burnside     v.     Lincoln     County  prejudiced    thereby.      State    v.    Ger- 

Court,  86  Ky.  423,  6  S.  W.  276.  hardt,    145   Ind.    439,   44   N.   E.   469, 

It  is  firmly  settled  that  a  party  33  L.  R.   A.   313.     See  also  State  v. 

will    not    be    heard   by    the    court    to  Roberts,  74  N.  H.  476,  69  Atl.  722. 

question  the  validity  of  a  law,  or  any  55.  In    re    O'Brien,   29    Mont.    530, 

part    thereof,    unless    he    shows    that  75  Pac.  200. 
some    right    of    his    is    impaired    or 


g   T(;i  POWER  OF  STATE  TO  REGULATE   rRAFFIC.  89 


CHAPTER  V. 

POWER  OF  STATE  TO  REGULATE  TRAFFIC. 

SECTION   76.  Liquor  traffic  generally. 

77.  No  inherent  right  to  sell. 

78.  Nature  of  right  to  sell. 

79.  Constitutional  provisions  affecting  power. 

80.  Control  of  state  generally— Police  power. 

81.  Power  of  state  to  regulate. 

82.  Legislature  may  impose  conditions  deemed  proper. 

83.  Right  to  prohihit  traffic  generally. 

84.  Effect  of  license  from  United  States. 

85.  Cannot  prohibit  having  liquors  in  one's  possession. 

86.  Prohibition  by  state-where  property  diminished  in  value. 

87.  Same  subject  continued. 

88.  Prohibition  as  affecting  property  values  concluded. 

89.  Power  of  state  to  engage  in  liquor  traffic. 

90.  Dispensary  laws— Alabama  decisions. 

91.  Dispensary  laws— Other  decisions. 

92.  Dispensary  laws— federal  decisions. 

93.  Dispensary   laws— question  as  to  creating  monopoly. 

94.  Dispensary  act— Power  of  mayor  to  enforce  action  under. 

95.  Sales  by  dispensers  after  dispensary  abolished. 

96.  Town  and  city  agents  to  purchase  and  sell. 

97.  Same  subject— liabilities  and  rights  of  towns. 

98.  Same  subject — power  of  agents. 

99.  Same  subject— power  of  agent  to  delegate  authority. 

Sec.  76.  Liquor  traffic  generally. 

Immorality,  crime  and  pauperism  can  in  many  cases  be  traced 
directly  to  indulgence  in  intoxicating  liquors  and  it  is  well  said 
that  such  liquors  are  in  their  nature  dangerous  to  the  morals, 
good  order,  health  and  safety  of  the  people  and  are  not  to  be 
placed  on  the  same  footing  with   the  ordinary  commodities  of 


90 


rott'ER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  77 


life.1  And  the  business  of  selling  intoxicating  liquors  has  for 
many  years,  both  in  this  country  and  in  England,  been  regarded 
by  legislatures  and  courts  with  disfavor;  and  it  does  not  stand 
upon  the  same  plane  of  utility  and  morality  with  many  useful 
arts,  trades  and  professions.2  So  in  a  recent  case  in  Minnesota 
it  is  said :  "  It  has  always  been  the  policy  of  this  state  to  protect 
the  youth  of  our  land  from  the  immoral  and  vicious  influences 
connected  with  the  liquor  traffic,  and  to  guard  them  so  far  as 
possible  from  the  formation  of  a  habit  inimical  alike  to  them  and 
to  the  welfare  of  society."  3  While,  however,  this  business  has 
as  a  general  rule  been  regarded  with  disfavor  yet  it  was  recognized 
as  a  legitimate  one  at  common  law  and  independent  of  constitu- 
tions or  statutes  the  courts  have  no  jurisdiction  to  suppress  it  as  it 
is  not  a  nuisance  per  se.4 

§  77.  No  inherent  right  to  sell. 

There  is  no  inherent  right  in  a  citizen  to  sell  intoxicating 
liquors  by  retail;  it  is  not  a  privilege  of  a  citizen  of  the  state  or 
of  a  citizen  of  the  United  States.5     The  right  is  not  to  be  regarded 


1-  State  v.  Aiken,  42  S.  C.  222, 
20  S.  E.  221,  26  L.  R.  A.  345. 

2.  Robinson  v.  Haug,  71  Mich.  38, 
38  N.  W.  6G8.     Per  Long,  J. 

3.  State  v.  Stroschein,  99  Minn. 
248,  251,  109  N.  W.  235.  Per  Brown, 
J. 

4.  Campbell  v.  Jackman  Bros. 
(Iowa   1008),  118  N.  W.  755. 

The  business  of  selling  intoxicating 
liquor  is  not  of  itself  wrongful  or  a 
nuisance  per  se.  It  is  the  un- 
restricted and  unregulated  sale  of  it 
that  Hi"  courts  have  regarded  ;>s 
tending  to  pauperism  and  crime,  and 
in    the    al  frictions 

placed  upon  the  traffic  by  legislative 
enactment  or  constitutional  provision, 
any  person  may  engage  in  it.  State 
v.  Roberts,  74  N.  H.  470,  69  Atl.  722; 


McCord  v.  State  (Okla.  1909),  101 
Pac.  280. 

An  ordinary  saloon  does  not  at  com- 
mon law  constitute  a  public  nuisance, 
but  such  a  place  when  kept  in  an 
unlawful  manner  may  become  one. 
Sopher  v.  State,  1G9  Ind.  177,  81 
N.  E.  913. 

5.  United  States. — Crowley  v. 
Christensen,  137  U.  S.  86,  91,  11  Sup. 
Ct.  13,  34  L.  Ed.  1120;  Busch  v. 
Webb,  122  Fed.  655;  Cantiori  v. 
Tillman,  54  Fed.   969. 

California. — Foster  v.  Board  of 
Police  Commissioners,  122  Cal.  483, 
37  I'm-.  763,  41  Am.  St.  Rep.  194: 
Rood  v  Collins,  5  Cal.  App.  494,  90 
I'm.-.  973. 

Indiana. — McClanahan  v.  Breeding 
(Ind.    S.    C.    1909),    88    N.    E.    695; 


§  78] 


POWER  OF  STATE  TO  REGULATE  TRAFFIC 


ill 


as  a  primary  and  absolute  one.fl  And  a  charter  to  a  corporation 
confers  upon  it  no  greater  right  to  manufacture  or  sel]  Liq 

than  individuals  possess  and  docs  not  vest  it  with  any  contract 
right  which  exempts  it  from  any  legislative  control  to  which  in- 
dividuals are  subject.7  So  a  corporation  though  granted  a  char- 
ter to  manufacture  intoxicating  liquors  is,  nevertheless,  held  to  be 
subject  to  the  provision  of  a  general  law  which  tends  to  regulate 
or  control  the  traffic  in  such  liquors,  though  no  power  is  reserved 
by  the  legislature,  in  granting  the  charter,  to  repeal  or  amend  the 
same.8 

§  78.  Nature  of  right  to  sell. 

The  retail  liquor  traffic  is  a  mere  privilege  and  in  defining  the 


Creencastle  v.  Thompson,  168  Ind. 
493,  81  N.  E.  497. 

Kansas. — State  v.  Durein,  70  Kan. 
13,  80  Pac.  987. 

Louisiana. — New  Orleans  v. 

Smythe,    116   La.   685,   41    So.   33. 

Michigan. — Sherlock  v.  Stuart,  96 
Mich.  193,  55  N.  W.  845,  21  L.  R.  A. 
580n. 

Missouri. — State  v.  Bixman,  162 
Mo.  1,  31,  62  S.  W.  828. 

New  Jersey. — Meehan  v.  Excise 
Commissioners,  73  N.  J.  L.  382,  64 
Atl.  689;  Hohoken  v.  Goodman,  68 
N.  J.  L.  217,  221,  51   Atl.   1092. 

South  Dakota. — State  v.  Brennan, 
2  S.  D.  384,  50  N.  W.  625. 

Wyoming. — State  v.  City  Council,  7 
Wyo.  417,  52  Pac.  975,  40  L.  R.  A. 
710. 

The  right  to  sell  intoxicating 
liquors,  so  far  as  such  a  right  exists, 
is  not  one  of  the  rights  urn  wing  out 
of  citizenship  of  the  United  States 
and  which  by  the  Fourteenth  amend- 
ment to  the  United  States  constitu- 
tion, the  states  were  forbidden  to 
abridge.  Bartemeyer  v.  Iowa,  is 
Wall.  (U.  S.)  12!).  21  L.  Ed.  929. 
See  also  In  re  Hoover,  30  Fed.  51. 


6.  State  v.  Ludington,  33  Wis. 
107.  Per  Dixon,  C.  J.,  quoted  in 
State  v.  Bixman,  162  Mo.  1,  23,  62 
S.  W.  828. 

In  a  case  in  Kentucky  it  is  said : 
"  No  one  has  ever  had  the  right  to 
sell  whisky  in  this  commonwealth, 
save  as  a  privilege.  It  has  always 
been  the  creature  of  license."  Burn- 
side  v.  Lincoln  County  Court,  86  Ky. 
423,  6  S.  W.  276. 

7.  Beer  Co.  v.  Massachusetts,  97 
U.  S.  25,  24  L.  Ed.  989. 

8.  Commonwealth  v.  Certain  In- 
toxicating Liquors,  115  Mass.  153. 
The  court  said:  "Any  laws  the 
sovereign  power  may  find  it  necessary 
or  salutary  to  enact,  regulating,  con- 
trolling, restricting  or  prohibiting  the 
sale  of  a  particular  kind  of  property 
for  tin"  general  benefit,  apply  as  well 
to  the  property  of  corporations,  like 
the  claimant,  as  to  individuals.  Such 
laws  are  in  tbe  nature  of  police 
regulations  and  individuals  and  cor- 
porations are  alike  subject  to  them. 
*  *  *  They  are  presumed  to  be 
passed  for  the  common  good,  and  to 
be  necessary  for  the  protection  of  the 

lie,    and    cannot     be    said    to    im- 


9'2 


TOWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  79 


extent  to  which  the  privilege  goes,  the  law  should  be  strictly  con- 
strued against  the  traffic,9  and  the  right  to  sell  granted  by  the 
legislature  is  held  by  the  grantee  as  a  favor,  which,  like  all  favors, 
must  be  received  upon  such  terms  and  conditions  and  subject  to 
such  burdens  and  inconveniences  as  the  donor  thinks  proper  to 
impose  and  the  donee  elects  to  accept.10 

§  79.  Constitutional  provisions  affecting  power. 

In  some  states  the  sale  of  intoxicating  liquors  is  restricted  or 
prohibited  by  constitutional  provisions  or  amendments.11  In 
construing  such  provisions  the  doctrine  is  said  to  be  well  settled 
that  as  a  rule  negative  or  prohibitory  clauses  in  a  constitution  are 
self  executing.  So  it  has  been  decided  that  a  prohibitory  provision 
in  a  state  constitution  against  the  sale,  barter,  giving  away  or 
otherwise  furnishing  intoxicating  liquors  of  any  kind  including 


pair  any  right,  or  the  obligation  of 
any  contract,  or  to  do  any  injury  in 
the  proper  and  legal  sense  of  these 
terms."     Per  Endicott,  J. 

9.  Ex  parte  Cain,  1  Okla.  7,  93 
Pac.   974. 

10.  State  v.  Ludington,  33  Wis. 
107,  115.     Per  Dixon,  C.  J. 

See  in  this  connection  chapters  XI- 
XV,  as  to  Licenses. 

The  licensed  saloon  keeper 
does  not  sell  liquor  by  reason 
of  an  inalienable  right  inherent 
in  citizenship  but  because  the  gov- 
ernment has  delegated  to  him  the  ex- 
ercise of  such  rights  under  its  power 
of  police.  State  v.  Aiken,  42  S.  C. 
222,  20  S.  E.  221,  20  L.  R.  A.  345. 

In  Louisiana,  it  has  been  decided 
that  the  business  of  selling  intoxi- 
cating liquors  has  been  made  lawful 
by  the  constitution  and  statutes  of  the 
state  and  that  the  right  of  any  citizen 
to  engage  in  it  is  one,  the  enjoy- 
ment of  which  is  subject  to  such  con- 
ditions only  as  may  be  imposed  or 
authorized  by  the  general  assembly  in 
the   legitimate   exercise   of  the  police 


power  of  the  state.  State  v.  City  of 
New  Orleans,  113  La.  371,  36  So. 
999. 

!!•  In  Kentucky  it  has  been  de- 
cided that  the  constitution  has  not 
altered  or  abridged  the  power  of  the 
legislature  to  pass  laws  governing  or 
restricting  the  sale  of  intoxicating 
liquors,  except  that  it  allows  certain 
units  named  to  wit,  the  county,  city, 
town,  district,  or  precinct  to  prohibit 
such  sale  by  a  vote  of  the  people. 
Board  of  Trustees  v.  Scott,  30  Ky. 
Law  Rep.  894,  101  S.  W.  944. 

A  statute  permitting  the  sale  of 
spirits,  wines  and  other  intoxicating 
liquors  to  be  used  for  mechanical  and 
medicinal  purposes  does  not  violate  a 
provision  of*  the  constitution  forbid- 
ding the  passing  of  any  act  by  the 
legislature  "  authorizing  the  grant  of 
license  for  the  sale  of  ardent  spirits, 
or  other  intoxicating  liquors."  Peo- 
ple v.  Collins,  3  Mich.  343. 

In  Maine,  it  is  decided  that  by  the 
adoption  of  a  constitutional  amend- 
ment prohibiting  the  manufacture, 
sale   and  keeping  for   sale  of   intoxi- 


§  79] 


POWER  OF  STATE  TO   REGULATE  TRAFFIC. 


93 


beer,  ale  and  wine  contrary  to  .such  provision  is  valid  and  self 
executing.12  But  a  constitutional  provision  or  amendment  pro 
hibiting  the  liquor  traffic  and  directing  thai  the  legislature  shall 
prescribe   regulations   for   the   enforcement    of   such   prohibitory 

provision  does  not  repeal  existing  laws  so  as  to  allow  untram- 
meled  traffic  until  the  legislature  acts  but  until  such  time  previous 
statutes  are  to  be  regarded  as  in  force.13  A  constitutional  pro- 
vision that  "  laws  may  be  passed  regulating  or  prohibiting  the 
sale  of  intoxicating  liquors  "  is  held  to  impose  a  restraint  upon 
the  plenary  and  unrestricted  power  of  a  legislature  to  deal  with 
the  subject  of  such  liquors  in  any  manner  it  chooses  to.  In  such 
a  case  it  is  declared  that  the  purpose  and  effect  of  the  provision 
is  to  restrict  and  limit  the  legislative  authority  to  the  powers 
expressly  granted  therein,  that  is  to  the  power  to  regulate  and 
prohibit  the  sale,  the  rule  being  said  to  be  simply  an  application 
of  the  maxim  expressio  unius  est  exclusio  alterius.  So  under 
such  a  provision  a  statute  was  held  void  which  provided  that  no 
person  shall  without  a  license  "  keep  in  his  possession,  for  another, 
spirituous  liquor."  14 


eating  liquors  all  statute  laws  in 
reference  to  the  subject  matter  em- 
braced in  the  amendment  were  not  re- 
pealed by  implication.  State  v.  Dorr, 
82  Me.  212,  19  Atl.  171. 

A  constitutional  provision  that 
"  the  legislature  shall  not  pass  any 
act  authorizing  the  grant  of  license 
for  the  sale  of  ardent  spirits,  or 
other  intoxicating  liquors"  has  been 
construed  as  prohibiting  the  legisla- 
ture from  authorizing  townships, 
cities  and  villages  to  grant  licenses 
but  not  to  inhibit  the  legislature 
against  regulating  and  even  prohibit- 
ing it  by  law.  Langley  v.  Ergen- 
singer,  ."!  Mich.  31  1. 

A  constitutional  amendment  in 
Rhode  Island  which  provided  "the 
manufacture  and  sale  of  intoxicating 


liquors  to  be  used  as  a  beverage  shall 
be  prohibited.  The  general  assembly 
shall  provide  by  law  for  carrying  this 
article  into  effect,"  was  held  not  to 
limit  the  power  which  the  general 
assembly  previously  had  to  enact 
prohibitory  laws;  an  express  com- 
mand to  exercise  the  power  in  re- 
spect to  the  use  as  a  beverage  not 
being  tantamount  to  an  abrogation 
of  the  power  to  regulate  and  restrict 
their  sale  for  other  purposes  which 
the  legislature  before  possessed.   State 

v.  Kane.  15  II.   I.  395,  6  All.  783. 
1-'.   Kx    parte    Cain.    1    Okla.    7.    !>.i 

Pac.    074. 

i:«.  North  Dakota  v.  Swan.  1  X.  D. 

5.  41  X.  W.    !!'"2. 

i  t.  state    v.    Gillman,    :v:,    W.    Va. 

1  it;,  in  s.  E.  i2S3,  6  L.  R.  A.  847. 


04 


TOWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  80 


§  80.  Control  of  state  generally — Police  power. 

It  may  be  stated  generally  that  the  owner  of  property  acquires 
and  holds  it  subject  to  the  right  of  the  legislature,  in  the  exercise 
of  the  police  power,  to  control  it  whenever  the  public  peace,  the 
public  health,  or  the  public  morals  is  involved.15  All  rights  are 
held  subject  to  the  police  power  of  the  state  and  if  the  public 
safety  or  the  public  morals  require  the  discontinuance  of  any 
manufacture  or  traffic,  the  hand  of  the  legislature  cannot  be 
stayed  from  providing  for  its  discontinuance,  by  any  incidental 
inconvenience  which  individuals  or  corporations  may  suffer.16 
And  where  the  constitution  of  a  state  contains  no  provision  ex- 
pressly or  impliedly  denying  to  the  state  the  right  to  permit,  or 
license  or  prohibit  the  sale  of  intoxicating  liquors  the  subject  is 
one  upon  which  the  legislature  may  constitutionally  exercise  its 
discretion.17  And  the  taxing  power  of  the  government  and  the 
regulations  presented  by  Congress  in  relation  thereto,  in  no  man- 


is.  Burnside  v.  Lincoln  County 
Court,  86  Ky.  423,  6  S.  W.  276. 

"  It  is  undoubtedly  true  that  it  is 
the  right  of  every  citizen  of  the  United 
States  to  pursue  any  lawful  trade  or 
business,  under  such  restrictions  as 
are  imposed  upon  all  persons  of  the 
same  age,  sex,  and  condition.  But 
the  possession  and  enjoyment  of  all 
rights  are  subject  to  such  reasonable 
conditions  as  may  be  deemed  by  the 
governing  authority  of  the  country  es- 
sential to  the  safety,  health,  peace, 
good  order  and  morals  of  the  com- 
munity." Crowley  v.  Christensen, 
137  U.  S.  86,  89,  11  Sup.  Ct.  13,  34 
L.  Ed.   1120.     Per  Mr.  Justice  Field. 

The  police  extends  to  the  protec- 
tion of  the  lives,  health,  and  property 
of  the  citizens  and  to  the  preserva- 
tion of  good  order  and  public  morals 
and  the  legislature  cannot  divest  it- 
self of  that  power.  Beer  Co.  v.  Mass- 
achusetts, 97  U.  S.  25,  24  L.  Ed.  989. 


16.  Beer  Co.  v.  Massachusetts,  :■'. 
U.  S.  25,  32,  24  L.  Ed.  989.  Per  Mr. 
Justice  Bradley. 

"  There  is  no  vested  right  to  carry 
on  such  traffic  which  is  in  the  na- 
ture of  property.  The  state  can  at 
any  time  step  in  and  absolutely  pro- 
hibit it,  no  matter  how  long  it  has 
been  carried  on,  nor  how  great  sums 
may  have  been  invested  therein,  nor 
how  serious  the  losses  which  may  re- 
sult from  such  prohibition."  In  re 
Hering  (N.  Y.  App.  Div.  1909),  117 
N.  Y.  Supp.  747.     Per  Burr,  J. 

The  right  to  engage  in  the  sale  of 
intoxicating  liquors  at  retail  arises 
solely  from  the  common  law,  and  such 
right  is  subject  to  any  restriction  the 
legislature  sees  fit  to  impose  under  its 
exercise  of  the  police  power.  Sopher 
v.  State,  169  Ind.  177,  81  N.  E.  913. 

17.  Campbell  v.  Jackman,  Bros. 
(Iowa   1908),   118  N.   W.   755. 


§  81] 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


95 


ner  curtail  or  interfere  with,  the  exercise  by  the  states  of  tlnir 
undoubted  police  powers.18 

§  81.  Power  of  state  to  regulate. 

As  we  have  stated  in  the  preceding  section  it  is  within  the  power 
of  the  state  to  make  such  laws  and  regulations  as  tend  to  preserve 
the  public  peace  and  to  protect  the  public  health,  morals  and 
safety.  The  exercise  of  this  power  is  peculiarly  and  especially 
proper  in  respect  to  the  liquor  traffic  as  the  results  which  follow 
from  the  use  of  intoxicating  liquors  often  tend  to  disturb  the 
public  peace  and  frequently  result  injuriously  to  the  health  and 
morals  of  those  who  partake  thereof  and  to  the  health  and  safety 
of  others.  Therefore  the  power  of  the  state  to  control  and  regu- 
late the  traffic  in  such  liquors  is  one  which  is  generally  lecognized, 
and  its  exercise  is  a  proper  excise  of  what  is  known  as  the  police 
power.19     So  this  power  is  said  to  be  signally  exercised  in  legis- 


ts. State  v.  Hanson,  16  N.  D.  347, 
113  N.  W.  371. 

!*>•  United  States. — Delamater  v. 
South  Dakota,  205  U.  S.  93,  27  Sup. 
Ct.  447,  51  L.  Ed.  724. 

Alabama. — Beauvoir  Club  v.  State, 
148  Ala.  643,  42  So.  1040. 

California. — Reed  v.  Collins,  5  Cal. 
A  pp.  494,  90  Pac.  973. 

Connecticut. — Appeal  of  Allyn 
(1909),   71   Atl.   794,  795. 

Georgia. — Rose  v.  State,  4  Ga.  App. 
588,  62  S.  E.   117. 

A'<  >i  tucky. — Commonwealth  v. 

Campbell  (1909),  117  S.  W.  383; 
Commonwealth  v.  McCann,  123  Ky. 
247,   94    S.    \V.   645. 

Louisiana. — New  Orleans  v. 

Smythe,  116  La.  685,  41  So.  33. 

Maine. — State  v.  Frederiekson,  101 
Me.  37,  63  All.  535. 

Michigan. — Robinson  v.  Baug,  71 
Mich.  38,  38  \.  W.  668. 

Mississippi. — Rohrbacher  v.  City  of 
Jackson,  51   Miss.  735. 


New  Jersey. — Hoboken  v.  Goodman, 
68  N.  J.  L.  217,  51  Atl.  1092;  Paul 
v.  Gloucester  County,  50  N.  J.  L. 
585,   15  Atl.  272. 

New  York. — People  v.  Warden  of 
City  Prison,  6  App.  Div.  520,  39  N.  Y. 
Supp.  582. 

Ohio.— Miller  v.  State,  3  Ohio  St. 
475. 

Oregon. — State  v.  Baker,  50  Oreg. 
381,  384,  92  Pac.  1076. 

Tennessee. — Webster  v.  State,  110 
Term.  491,  82  S.  W.  179. 

Texas. — De  Grazier  v.  Stephens 
(S.  C.  1907),  105  S.  VV.  992;  Ex 
parte  King,  52  Tex.  Cr.  383,  107 
S.  W.  549;  Ex  parte  Bell,  24  Tex. 
App.  428,  6  S.  W.  197. 

Wisconsin. — State  v.  Ludington,  33 
Wis.    107.   113. 

A  constitutional  provision 
vesting  "the  legislative  power"  of 
the  state  in  tin-  general  assembly  <>r 
legislature  rovers  the  whole  Held  of 
legitimate   legislation,   except  so   far 


96 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§81 


lation  designed  to  promote  popular  education  to  protect  the  public 
health  and  morals,  to  punish  and  prevent  crime,  to  alleviate  and 


as  limitations  may  be  found  in  other 
provisions  of  the  state  constitution  or 
in  that  of  the  United  States.  Appeal 
of  Allyn  (Conn.  1909),  71  Atl.  794. 

Liquor  dealers  and  saloon 
keepers  belong  to  that  class  of  trades 
which  have  ever  been  the  subject  of 
regulation  under  what  are  called  po- 
lice powers.  Territory  of  Arizona  v. 
Connell,  2  Ariz.  339,  16  Pac.  209. 

It  is  entirely  within  the  power 
of  the  legislature  to  prescribe  under 
what  circumstances  and  conditions  a 
sale  of  intoxicating  liquors  may  be 
made  and  where  such  power  has  been 
exercised  it  is  not  within  the  province 
of  one  who  holds  a  permit  to  sell  such 
liquors  to  ignore  any  one  of  the  con- 
ditions imposed  as  immaterial.  State 
v.  Harris,  122  Iowa  78,  97  N.  W. 
1093. 

"  The  right  to   legislate  on   a   sub- 
ject   so    deeply    affecting    the    public 
welfare  and  security  has  not  hereto- 
fore been  questioned  or  denied;    and 
it  could  not  well  be,  for  it  would  have 
been   to   deny  the   powers   of  govern- 
ment   inherent    in    every    sovereignty 
to    the   extent    of    its    dominions.      A 
state    is    not    sovereign    without    the 
power    to    regulate    all    its    internal 
commerce    as    well    as    police.      The 
legislature  exercises  and  wields  these 
sovereign  police  powers,  as   it  deems 
the  public  good  to  require.     It  is   a 
hold  assertion  at  this  day  that  there 
is    anything   in   the   State   or   United 
SI  ale-    Constitutions   conflicting  with 
or  setting  bounds  upon  the  legislative 
discretion  or  action  in  directing  how, 
when  or  where  a  trade  shall  be  con- 
duct ei]     in     articles    intimately    con- 
nected with  the  public  morals,  or  pub- 
lic   safety,   or    public   prosperity;    or 
indeed   to   prohibit   or   suppress   such 
traffic   altogether    if   deemed   essential 


to  effect  those  great  ends  of  good 
government."  Metropolitan  Board  of 
Excise  v.  Barrie,  34  N.  Y.  657,  666, 
Per  Wright,  J.  See  in  this  connec- 
tion note  7  N.  Y  Ann.  Rev.  Ed.  800. 
"  The  legislature  having  control  of 
the  subject  of  the  traffic  in  and  use 
of  intoxicating  liquors,  may  make 
such  regulations  to  prevent  the  public 
evils  and  private  injuries  resulting 
from  intoxication  as  in  its  judgment 
are  calculated  to  accomplish  this  end. 
It  may  prohibit  the  selling  or  giving 
away  of  liquors,  or  it  may  while  not 
interfering  with  the  liberty  of  the 
sale  or  use,  guard  against  the  dan- 
gers of  an  indiscriminate  traffic,  and 
induce  caution  on  the  part  of  those 
who  engage  in  the  business,  by  sub- 
jecting them  to  liabilities  for  con- 
sequential injuries."  Bertholf  v. 
O'Reilly,  74  N.  Y.  509,  524.  Per 
Andrews,  J. 

"  If  the  legislature  was  impotent  to 
deal  with  the  traffic  in  intoxicating 
liquors  or  powerless  to  restrain  or 
regulate  it  in  the  interest  of  the  com- 
munity at  large,  because  legislation 
on  the  subject  might  to  some  extent 
interfere  with  the  use  of  property  or 
the  prosecution  of  private  business, 
the  legislature  would  be  shorn  of  one 
of  its  most  usual  and  important 
functions.  But  as  we  have  said  the 
right  of  the  legislature  to  regulate 
the  traffic  is  shown  by  the  uniform 
practice  of  the  government.  It  may 
not  only  regulate  but  it  may  prohibit 
it."  Bertholf  v.  O'Reilly,  74  N.  Y. 
509,   520.      Per   Andrews,   J. 

"  The  subject  of  the  regulation  of 
the  traffic  in  liquors  has  been  held 
uniformly  to  be  within  the  police 
power  of  the  state,  both  by  the  Su- 
preme Court  of  the  United  States 
and  of  this  State."     Guy  v.  Commis- 


§82] 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


prevent  pauperism,  and  especially  in  legislation  designed  to  pre- 
vent the  demoralization  and  impoverishment  that  follow  free 
traffic  in  intoxicating  liquors.20 

§  82.  Legislature  may  impose  conditions  deemed  proper. 

In  the  absence  of  a  provision  in  the  constitution  of  a  state  re- 
stricting the  power  of  the  legislature  in  reference  to  the  sale  of 
liquor,  the  legislature  has  the  power  to  regulate  the  mode  and 
manner  and  the  circumstances  under  which  the  liquor  traffic  may 
be  conducted,  and  to  surround  the  right  to  pursue  it  with  such 
conditions,  restrictions  and  limitations  as  it  may  deem  proper.21 


sioners,  122  N.  C.  471,  29  S.  E.  771. 
Per   Clark,  J. 

"  By  this  general  police  power  of 
the  state,  persons  and  property  are 
subjected  to  all  kinds  of  restraints  and 
burdens,  in  order  to  secure  the  gen- 
eral comfort,  health  and  prosperity 
of  the  state;  of  the  perfect  right  of 
the  legislature  to  do  which  no  ques- 
tion ever  was,  or  upon  acknowledged 
general  principles  can  be  made." 
Thorpe  v.  R.  &  B.  R.  Co.,  27  Vt.  140, 
62  Am.  Dec.  G25.     Per  Redfield,  J. 

It  is  within  the  province  of  the 
legislature  to  pass  laws  for  the  pro- 
motion of  safety,  health  and  morals 
of  the  people  and  the  regulation  and 
control  of  the  traffic  in  ardent  spirits 
is  within  the  discretion  of  the  legisla- 
ture under  the  police  power  of  the 
state  Farmville  v.  Walker.  101  Va. 
323,  4::  S.   E.  55,  8,  til   L.  R.  A.  125. 

20.  state  v.  Fitzpatrick,  16  R.  I. 
54,  57.  11  Atl.  767.     Per  Durfee,  J. 

21.  Giozza  v.  Tiernan,  148  U.  S. 
657,  13  Sup.  Ct.  721.  37  L.  Ed.  599. 
Per  Mr.  Chief  Justice  Fuller. 

"Regulations  respecting  the  pur- 
suit of  a  lawful  trade  or  business  are 
of  very  frequent  occurrence  in  the 
various  cities  of  the  country,  and 
what  such  regulations  shall  be  and  to 


what  particular  trade,  business  or 
occupation  they  shall  apply  are  ques- 
tions for  the  state  to  determine,  and 
their  determination  comes  within  the 
proper  exercise  of  the  police  power  by 
the  state,  and  unless  the  regulations 
are  so  utterly  unreasonable  and  ex- 
travagant in  their  nature  and  purpose 
that  the  property  and  personal  rights 
of  the  citizen  are  unnecessarily,  and 
in  a  manner  wholly  arbitrary,  inter- 
fered with  or  destroyed  without  due 
process  of  law,  they  do  not  extend  be- 
yond the  power  of  the  state  to  pass, 
and  they  form  no  subject  for  Federal 
interference."  Gundling  v.  Chicago, 
177  U.  S.  183,  43  L.  Ed.  725,  20  Sup. 
Ct.  633.     Per  Mr.  Justice  Peckham. 

With  respect  to  the  act  of  sale,  over 
which  the  power  of  legislature  is  con- 
ceded to  be  unlimited,  and  with  re- 
spect to  the  responsibility  which  shall 
attach  to  the  doing  of  thai  act  or 
the  conditions  under  which  it  may  be 
dune  the  way  seems  open  for  the 
legislature  to  enact  whatsoever  it 
pleases,  state  v.  Ludington,  33  Wis. 
107,  115.     Per  Dixon.  0.  J. 

It  is  entirely  within  the  prov- 
ince of  the  legislature,  in  the  ex- 
ercise  of  the  police  power  of  the  state 
to    regulate    the    sale   of    intoxicating 


1)8 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  83 


This  power  known  as  the  police  power  is  one  of  which  the  legis- 
lature cannot  divest  itself  and  such  body  is  the  exclusive  judge 
of  the  manner  in  which  it  shall  be  exercised  and  its  action  should 
be  liberally  construed.22  And  a  regulation  of  the  liquor  traffic 
may  be  an  inconvenience  to  the  dealer  but  no  matter  what  incon- 
venience may  be  imposed  upon  him  by  the  legislature,  so  long 
as  it  bears  equally  upon  all  persons  falling  in  his  class,  he  has  no 
right  to  complain.23  Though  the  regulations  or  conditions  sur- 
rounding the  traffic  in  intoxicating  liquors  may  be  more  onerous 
than  those  imposed  upon  another  business,  yet  they  may  be  sus- 
tained because  the  business  of  selling  intoxicating  liquors  more 
seriously  affects  the  health,  morals  and  general  welfare  of  the 
public  than  any  other  business.24 

§  83.  Right  to  prohibit  traffic  generally. 

The  power  of  the  state  in  respect  to  the  liquor  traffic  is  not 
limited  to  the  imposing  of  conditions  or  restrictions  merely  which 


liquors  and  to  impose  such  restric- 
tions upon  those  engaged  in  the  bus- 
iness as  will  carry  out  its  purpose. 
State  v.  Settles,  34  Mont.  448,  87  Pac. 
445.     Per  Brantly,  J. 

A  bond  may  be  required  in  the 
exercise  of  the  power  to  regulate  the 
legislature  may  impose  such  condi- 
tions precedent  to  the  right  to  en- 
gage in  the  traffic  as  it  may  deem 
just  and  may  require  the  giving  of  a 
bond  as  such.  Bell  v.  State,  28  Tex. 
App.  90,  12  S.  W.  410.  See  chapters 
XI,-XV,    herein    as    to    licenses    and 

22.  in  re  O'Brien,  29  Mont.  530, 
545,   75   Pac.   200. 

In  a  case  in  the  United  States  Cir- 
cuit Court  it  is  declared  that  the 
state  cannot  barter  away  or  in  any 
manner  abridge  any  of  its  inherent 
powers,  as  for  instance  its  right  in 
the  exercise  of  its  police  power  to 
regulate,     restrict     or     prohibit     the 


traffic  in  intoxicating  liquors,  and 
that  any  contracts  to  that  end  are 
void  upon  general  principles,  and  can- 
not be  protected  by  the  provisions  of 
the  national  constitution.  Kresser  v. 
Lyman,  74  Fed.  7G5,  declaring  that 
this  proposition  is  abundantly  settled 
by  decisions  of  the  highest  federal 
tribunal. 

Reluctance  of  courts  to  inter- 
fere wita  law. — The  evils  attending 
the  vice  of  intemperance  in  the  use  of 
spirituous  liquors  are  so  great  that  a 
natural  reluctance  is  felt  in  appear- 
ing to  interfere,  even  on  constitu- 
tional grounds,  with  any  law  whose 
avowed  purpose  is  to  restrict  or  pre- 
vent the  mischief.  Scott  v.  Donald, 
165  U.  S.  58,  91,  17  Sup.  Ct.  265,  41 
L.  Ed.  632.     Per  Mr.  Justice  Shiras. 

23.  State  v.  Settles,  34  Mont.  448, 
87  Pac.  445. 

2  1.  State  v.  City  of  New  Orleans, 
113  La.  371,  36  So.  999. 


§  m 


I'OWKK  OF  STATE,  TO   KEOILATH  TRAFFIC. 


99 


partake  of  the  character  of  regulation  or  control.  The  legisla- 
ture may,  when  in  its  discretion  it  deems  it  advisable,  pass  laws 
which  are  prohibitory  in  their  nature  and  result,  either  as  to  the 
manufacture  or  sale  of  intoxicating  liquor,  or  as  to  both.25     The 


25.  United  States. — Phillips  v. 
Mobile,  208  U.  S.  472,  28  Sup.  Ct. 
370;  Kidd  v.  Pearson,  128  U.  S.  1,  9 
Sup.  Ct.  6,  32  L.  Ed.  346;  Foster  v. 
Kansas,  112  U.  S.  201,  5  Sup.  Ct.  8, 
97,  28  L.  Ed.  629;  State  v.  Bradley, 
26  Fed.  289. 

Alabama.— Marks  v.  State  (1909), 
48  So.  364;  Feibelman  v.  State,  130 
Ala,  122,  30  So.  384. 

A  r kan sas. — Drew  County  v.  Ben- 
nett, 43  Ark.  365. 

California. — Reed  v.  Collins,  5  Cal. 
App.  494,  90  Pac.  973. 

Connecticut. — Appeal  of  Allyn 
(1909),  71  Atl.  794,  795;  State  v. 
Wheeler,  25  Conn.  290. 

Delaware. — State  v.  Allmond,  2 
Houst.  612. 

Georgia. — Barker  v.  State,  118  Ga. 
35,  44  S.  E.  874. 

Illinois. — Jones  v.  People,  14  111. 
196. 

Iowa. — Kaufman  v.  Dostal,  73  Iowa 
691,  36  N.  W.  643:  McLane  v. 
Leicht,  ti'.»  Iowa  401,  29  N.  W.  327; 
Santo  v.  State,  2  Iowa  1G5,  63  Am. 
Dec.  487. 

Kansas. — State  v.  Mugler,  29  Kan. 
252;  Prohibitory  Amendment  Cases, 
24   K:ui.  700. 

Kentucky. — Brown  v.  Common- 
wealth, 98  Ky.  652,  34  S.  W.  12; 
Stickrod  v.  Commonwealth,  86  Ky. 
285,  5  S.  W.  580;  Anderson  v.  Com- 
monwealth, l.">  Push  485. 

Louisiana.-  New  Orleans  v.  Smytlie, 
116  La.  685,  41  So.  33. 

Maine.  Stale  v.  Gurney,  ."7  Me. 
156,  58  Am.  Dec.  782. 

Maryland.— Fell  v.  State,  42  Ml. 
71,  20  Am.  Rep.  83. 


Michigan. — Robinson  v.  Haug,  71 
Mich.  38,  38  N.  W.  668;  People  v. 
Gallagher,  4  Mich.  244. 

Mississippi. — Rohrbocker  v.  City  of 
Jackson,   51    Miss.   735. 

Missouri. — State  v.  Bixman,  162 
Mo.  1,  62  S.  VV.  828. 

Nebraska. — Hunzinger  v.  State,  39 
Neb.  653,  58  N.  W.   194. 

New  York. — People  v.  Quant,  2 
Park.  Cr.  410. 

North  Carolina. — Guy  v.  Commis- 
sioners, 122  N.  C.  471,  29  S.  E.  771. 

Ohio.— Gordon  v.  State,  46  Ohio  St. 
607,  638,  23  N.  E.  63,  6  L.  R.  A. 
749 ;  State  v.  Frame,  39  Ohio  St.  399, 
408. 

Oklahoma.— Ex  parte  Cain  (1908), 
93  Pac.  974. 

Oregon. — State  v.  Baker,  50  Oreg. 
381,  384,  92  Pac.  1076. 

Rhode  Island. — State  v.  Fitzpatrick, 
16  R.  I.  54,  11  Atl.  707;  State  v. 
Amery,   12   R.   I.   64. 

Texas.— Ex  parte  Bell,  24  Tex. 
App.  428,  6  S.  W.  197. 

Vermont. — State  v.  Lovell,  47  Vt. 
493;  Lincoln  v.  Smith,  H  Vt.  328. 

Virginia. — Savage  v.  Common- 
wealth, 84  Va.  619,  5  S.  E.  565. 

Wisconsin. — State  v.  Ludington,  33 
Wis.   107. 

Wyoming. — Stale  v.  City  Council, 
7  Wyo.  417.  52  Pac.  975,  40  L.  R.  A. 
710. 

Remarks     of     courts     sustaining 
rule. 

United  States. — In  a  case  in  the 
United  states  Supreme  Court  it  was 
said  that  the  question  as  to  the  consti- 
tutional power  of  a  state  to  prohibit 
the   manufacture   and    sale    of    in 


100 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§83 


legislature  in  passing  prohibitory  measures  effecting  this  traffic 
acts  in  the  exercise  of  the  police  power  as  in  the  case  of  enact- 


cating  liquors  was  no  longer  an  open 
one  in  that  court.  Foster  v.  Kansas, 
112  U.  S.  201,  206,  5  Sup.  Ct.  8,  97, 
28  L.  Ed.  629. 

And  again  in  the  same  court  it  was 
said:  "If  any  state  deems  the  retail 
and  internal  traffic  in  ardent  spirits 
injurious  to  its  citizens  and  calcu- 
lated to  produce  idleness,  vice,  or  de- 
bauchery, I  see  nothing  in  the  con- 
stitution of  the  United  States  to  pre- 
vent it  from  regulating  and  restrain- 
ing the  traffic,  or  from  prohibiting  it 
altogether,  if  it  thinks  proper." 
License  Cases,  5  How.  (N.  S.)  504, 
577,  12  L.  Ed.  256.  Per  Mr.  Chief 
Justice   Taney. 

Alabama. — In  a  recent  case  in  Ala- 
bama, it  is  declared:  "That  the  po- 
lice power  of  a  state  may  be  ap- 
propriately exercised  in  the  prohibi- 
tion of  dealings  in  intoxicants  has 
been  too  long  settled  to  now  admit 
of  further  consideration  with  a  view 
to  its  denial."  State  v.  Skeggs  (Ala. 
1908),  46  So.  268,  273.  Per  Mc- 
Clellan,  J. 

District  of  Columbia. — "The  mat- 
ter of  regulating,  and  even  the  pro- 
hibition, of  the  sale  of  intoxicating 
liquors,  notwithstanding  the  grave 
arguments  against  the  expediency  of 
legislative  action  on  the  subject,  and 
notwithstanding  the  still  graver  argu- 
ments based  upon  the  assumed  en- 
croachment of  such  legislation  upon 
individual  freedom  and  natural  right, 
is  now  generally  conceded  to  be  a 
proper  subject  for  legislative  control." 
Mackall  v.  District  of  Columbia,  16 
App.  D.  C.   301. 

drorqia. — "  The  right  to  regulate  or 
prohibit  the  manufacture  and  sale  of 
intoxicating  liquors  for  use  as  a 
bf-vfrage  is  well  established  as  being 
within    the    exercise    of    the    police 


powers  of  the  state  to  protect  the 
public  against  the  evils  which  re- 
sult from  the  excessive  use  of  ardent 
spirits."  Roberts  v.  State,  4  Ga.  App. 
207,  217,  60  S.  E.  1082.     Per  Hill,  J. 

In  this  case  however,  the  court 
further  declared  that :  "  To  say  that 
the  legislature  has  the  right  to  for- 
bid the  manufacture  or  sale  of  every 
liquid,  regardless  of  the  amount  of 
alcohol  it  contains,  or  regardless  of 
the  presence  of  other  ingredients, 
which  prevent  any  use  of  the  liquid 
as  a  beverage,  is  to  give  an  elastic 
construction  to  the  right  of  legisla- 
tion, not  warranted  by  the  constitu- 
tion or  laws,  or  supported  by  any  re- 
spectable authority." 

Indiana. — In  a  recent  case  in  In- 
diana it  is  said  that  the  liquor 
traffic  being  necessarily  dangerous  or 
destructive,  is  a  fit  subject  for  the 
exercise  of  the  police  power  and  the 
legislature  may  license,  regulate  or 
prohibit  the  same.  Schmidt  v.  City 
of  Indianapolis,  168  Ind.  631,  80  N.  E. 
632. 

Maine. — In  a  recent  case  in  Maine 
it  is  decided  that  the  constitutional 
right  of  the  legislature  to  regulate 
or  prohibit  the  sale  and  keeping  of 
intoxicating  liquors  and  to  declare 
certain  liquors  intoxicating  within 
the  meaning  of  the  law  governing  in- 
toxicating liquors  irrespective  of  the 
intoxicating  character  of  such  liquors 
as  a  matter  of  fact,  both  under  the 
state  and  Federal  constitutions,  has 
been  so  universally  answered  in  the 
affirmative,  both  by  the  decisions  in 
that  state  and  by  the  Supreme  Court 
of  the  United  States,  that  it  is  no 
longer  a  question  for  argument  or 
even  of  doubt.  State  v.  Frederickson, 
101  Me.  37,  63  Atl.  535. 

New    Jersey. — The    right    to    regu- 


§  83] 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


101 


ments  which  are  in  the  nature  of  regulation  and  the  judgment  or 
discretion  exercised  by  the  legislature  in  this  respect  is  not  a  mat- 
ter for  the  courts  to  pass  upon.  So  it  is  said  that  if  in  view  of 
diminishing  the  evils  resulting  from  the  intoxicating  liquor  traffic 
a  system  of  regulation  is  adopted  which  practically  prohibits  the 
sale  of  intoxicating  liquors  as  a  beverage  it  is  not  for  the  court  to 
say  that  there  has  been  a  misuse  of  legislative  discretion.26     And 


late  the  sale  of  intoxicating  liquors,  at 
retail  by  the  legislature  or  by  muni- 
cipalities or  other  authority,  under 
legislative  power  given,  is  within  the 
police  power  of  the  state  and  is  prac- 
tically limitless  and  may  extend  to 
the  prohibition  of  the  sale  altogether. 
Meehan  v.  Excise  Commissioners,  73 
N.  J.  L.  382,  64  Atl.  689. 

Rhode  Island. — The  right  of  the 
state  to  regulate,  control  or  prohibit 
the  liquor  traffic  within  its  borders  is 
one  generally  conceded.  State  v.  Fitz- 
patrick,  16  R.  I.  54,  57,  11  Atl.  7G7. 

Vermont. — So  far  as  prohibiting 
the  traffic  in  intoxicating  liquors  is 
concerned  it  has  several  times  been 
properly  decided  that  such  a  law  as 
a  police  regulation  is  valid.  Atkins 
v.   Town   of  Randolph,   31   Vt.  226. 

Gift  of  liquors. — In  Texas  it  was 
decided  in  one  of  the  earlier  cases 
that  the  legislature  had  no  power 
under  the  constitution  to  prohibit  the 
gift  of  intoxicating  liquor.  Stall- 
worth  v.  State,  16  Tex.  App.  345. 

Traffic  on  navigable  waters.— 
In  Indiana  a  general  statute  making 
it  unlawful  to  retail  intoxicating  li- 
quors without  a  license]  but  silent  as 
to  navigable  waters  has  been  construed 
as  being  an  absolute  prohibitory  law 
as  to  the  right  to  sell  on  boats  ply- 
ing the  Ohio  river  within  the  juris- 
diction of  the  state  of  Indiana. 
Welsh  v.  State.  126  Ind.  71,  25  N.  E. 
883,  9  L.  R.  A.  664. 

2G.  Gordon   v.    State,   46   Ohio   St. 


607,  638,  23  N.  E.  63,  6  L.  R.  A. 
749n. 

License  does  not  protect 
against.— It  has  been  decided  that 
the  state  may  pass  a  law  prohibiting 
the  sale  of  intoxicating  liquors  in  any 
part  of  the  state  notwithstanding  a 
party  to  be  affected  by  the  law  may 
have  procured  a  license  under  the  gen- 
eral license  laws  of  the  state  which 
has  not  expired.  Fell  v.  State,  42 
Md.  71,  20  Am.  Rep.  83,  holding  that 
a  license  is  a  mere  permit,  subject  to 
be  modified  or  annulled  at  the  pleas- 
ure of  the  legislature,  who  have  the 
power  to  change  or  repeal  the  law 
under  which  the  license  was  granted. 

Malt  liquors  whether  intoxi- 
cating or  not. — In  the  exercise  of 
this  power  it  has  been  decided  that 
the  legislature  can  in  connection  with 
other  liquor  prohibit  the  sale  of  malt 
liquor  whether  intoxicating  or  not. 
Feibelman  v.  State,  130  Ala.  122,  30 
So.  384,  wherein  the  court  said:  "If 
the  prohibition  should  in  terms  go 
only  to  the  sale  of  intoxicating  malt 
liquors,  there  would  be  left  open  such 
opportunities  for  invasions  of  the  law 
and  there  would  arise  such  difficulties 
of  proof  as  that  the  law  could  not  be 
effectively  executed;  and  the  law- 
makers having  the  undoubted  power 
to  prohibit  and  to  prevent  the  sale  of 
intoxicating  malt  liquors  and  to  en- 
act to  that  end  a  law  which  tan  be 
executed  so  as  to  secure  it,  and  find- 
ing that  this  cannot  be  accomplished 


102  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  [§  84 

in  this  connection  it  has  been  decided  that  whenever  in  its  judg- 
ment it  is  necessary  for  the  protection  of  the  health,  morals,  peace 
and  safety  of  the  people  the  legislature  may  prohibit  the  manu- 
facture and  sale  of  intoxicating  liquors  in  the  state  for  medical, 
scientific  and  mechanical  purposes;  and  in  the  interest  of  the 
public  welfare  it  may  impose  any  conditions  upon  the  conduct  of 
those  industries  short  of  prohibition  which  it  may  deem  proper.27 
So  the  legislature  has  power,  as  a  police  regulation,  to  prohibit 
the  sale  of  intoxicating  liquor,  subject  only  to  the  laws  of  the 
United  States  regulating  imports,  and  these  protect  it  only  in  the 
hands  of  the  importer,  in  the  original  cask  or  package.28  And  it 
is  decided  that  a  prohibitory  law  may  be  constitutionally  applied 
to  the  sale  of  liquor  manufactured  by  the  seller  before  the  passage 
of  the  law.29 

§  84.  Effect  of  license  from  United  States. 

The  power  of  a  state  in  regard  to  the  liquor  traffic  within  the 
state  is  supreme  and  one  who  seeks  to  sell  intoxicating  liquors 
within  a  state  must  look  to  the  laws  of  that  state  for  such  au- 
thority. And  the  fact  that  the  government  of  the  United  States 
has  granted  to  such  person  a  license  under  the  revenue  laws  of  the 
United  States  confers  upon  him  no  power  to  carry  on  such  traffic 
until  he  has  complied  with  the  laws  of  the  state  in  which  he  seeks 
to  conduct  it.30     So  it  has  been  said :  "  It  has  been  admitted  in 

without  extending  the  prohibition  to  would  open  the   door  to  mischievous 

all  malt  liquors,  whether  intoxicating  evasions  of  the  statute  aimed  at  sales 

or   not,   such   extension,   necessary  to  of  intoxicating  liquors.     Feibelman  v. 

prevent  the  sale  of  intoxicants,  is  as  State,  130  Ala.  122,  125,  30  So.  384, 

essentially  the  proper  exercise  of  the  27.  State  v.  Durein,  70  Kan.  13,  80 

police   power   as   the   inhibition   with  Pac.  987. 

reference   to    intoxicants."     Per    Mc-  28.  State    v.    Allmond,    2    Houst. 

Clellan,  C.  J.  (Del.)    612. 

Fruit  preserved  in  alcohol.— It  29.  Stickrod  v.  Commonwealth,  86 

has  been  said  that  there  is  no  doubt  Ky.  285,  5  S.  W.  580. 

but  that  bona  fi'l<-  sales  of  fruit  pre-  30-  United      States.— License      Tax 

served  in  alcoholic  liquor  may  be  pro-  Cases,   5   Wall.   462,    18   L.    Ed.   497, 

hibited   because   to   allow   such   sales  McGuire   v.   Commonwealth,   3   Wall. 


§84] 


POWER  OF  STATE  TO  REGULATE  TRA1TK  . 


li»:; 


the  past  by  statesmen  of  every  class,  as  well  as  all  eminent  jurists 
that  each  state  has  the  sole  power  of  regulating  their  own  internal 
police;  to  define  and  punish  crime;  to  declare  and  enforce  the 
rights  of  their  citizens;  and  to  establish  the  relations  and  pre- 
scribe the  duties  of  their  citizens.  It  has  never  been  supp< 
that  Congress  could  interfere  with  or  exercise  such  power,  and  to 
hold  that  Congress  could  license  citizens  of  a  state,  to  violate 
its  laws,  would  be  an  invasion  of  the  constitutional  power  of  the 
state,  that  would  be  subversive  of  our  republican  form  of  govern- 
ment." 31  So  a  license  granted  by  the  United  States  to  a  retail 
liquor  dealer  affords  no  protection  against  the  penalties  imposed 
for  the  sale  of  intoxicating  liquors  in  violation  of  the  laws  of  the 
state.32  And  in  another  case  it  is  decided  that  payment  of  taxes 
to  the  Federal  government  on  sales  made  in  a  tenement  within  the 
state  is  no  bar  to  an  indictment  under  the  statutes  of  such  state 
for  keeping  the  tenement  for  such  sales  in  violation  of  law,  and 
thereby  maintaining  a  common  nuisance.33  And  steamboats  en- 
gaged in  interstate  commerce,  must  where  they  land  within  the 
jurisdiction  of  a  state,  comply  with  the  laws  of  such  state  before 
they  can  sell  liquor  at  such  landings.34 


387,  18  L.  Ed.  220.  See  Endleman  v. 
United  States,  86  Fed.  456,  30  C.  C. 
A.  186. 

Arkansas. — Pierson  v.  State,  39 
Ark.  219. 

Illinois. — Block  v.  Town  of  Jackson- 
ville, 36   111.   301. 

Iowa.  Stommel  v.  Timbrel,  84 
Iowa  336,  51  N.  W.  159;  State  v. 
McCleary,  17  Iowa  44. 

Maine. — State  v.  Delano,  54  Me. 
501. 

Massachusetts. — Commonwealth  v. 
Holbrook,  10  Allen  200.  Common- 
wealth v.  Thorniley,  2  Allen  445. 

Minnesota. — State  v.  Funk,  27 
Minn.  318. 


North  Carolina. — State  v.  Douns, 
116  N.  C.  1064,  21  S.  E.  689,  citing 
State  v.  Stevens,  114  N.  C.  873,  19 
S.  E.  861. 

Virginia.  Commonwealth  v.  Sheck- 
els,  78  Va.   36. 

31.  Block  v.  Town  of  Jackson- 
ville. 36  111.  301,  304,  305.  Per 
Walker,  J. 

:i-2.  state  v.  Baughman,  20  Iowa 
407. 

33.  Commonwealth  v.  Sanborn,  116 
Mass.   61. 

34.  Barrel!  v.  Speed,  113  Term.  224, 
81  s.  W.  840;  Foppiano  v.  Speed,  113 
Tenn.   L67,  S2   S.  W.  222. 


104  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  [§  85 

§  85.  Cannot  prohibit  having  liquors  in  one's  possession. 

While  the  state  in  the  exercise  of  the  police  power  may  pro- 
hibit the  sale  or  giving  away  of  intoxicating  liquors  yet  this 
power  is  one  which  is  justified  by  the  fact  that  such  legislation 
is  to  protect  the  public  health,  morals  and  safety,  and  as  such 
liquors  may  be  a  legitimate  subject  of  property  the  state  cannot 
prohibit  one  from  having  them  in  his  possession,  and  ownership 
when  such  possession  and  ownership  is  for  his  own  personal  use 
and  is  not  injurious  to  the  public.  This  question  is  considered 
in  a  recent  case  in  Kentucky  where  the  constitutionality  of  a 
statute  prohibiting  a  person  from  having  intoxicating  liquor  in 
his  possession  was  considered.  The  court  said :  "  The  right  to 
use  liquor  for  one's  own  comfort,  if  the  use  is  without  direct  in- 
jury to  the  public,  is  one  of  the  citizens'  natural  and  inalienable 
rights,  guaranteed  to  him  by  the  constitution  and  cannot  be 
abridged  as  long  as  the  absolute  power  of  a  majority  is  limited 
by  our  present  constitution.  The  theory  of  our  government  is 
to  allow  the  largest  liberty  to  the  individual  commensurate  with 
the  public  safety,  or,  as  it  has  been  otherwise  expressed,  that 
government  is  best  which  governs  the  least.  *  *  *  We  hold 
that  the  police  power — vague  and  wide  and  undefined  as  it  is — 
has  limits,  and  in  matters  such  as  that  we  have  in  hand  its  utmost 
frontier  is  marked  by  the  maxim  '  Sic  utere  tuo  ut  alienum  non 
laedas.'  "  35  So  a  statute  prohibiting  the  keeping  of  intoxicating 
liquors  for  sale  does  not  aply  to  liquors  which  are  kept  by  a  per- 
son entirely  for  his  own  use.36  And  it  has  been  decided  that  a 
code  provision  that  no  person  shall,  without  a  state  license  there- 
for, "  keep  in  his  possession,  for  another,  spirituous  liquors  "  is 


35.  Commonwealth      v.      Campbell,  Rep.    743,    holding   an   act   known   as 

(Ky.    WOO),    117    S.    W.    383.      Per  the  "  Cold  Storage  Act "  not  a  legiti- 

Barker,  J.  mate  exercise  of  the  police  power. 

See  also  Ex  parte  Brown,  38  Tex.  36.  State  v.   Fitzpatrick,   16  R.  I. 

Cr.  295,  42   S.   W.   554,   70  Am.   St.  54,  11  Atl.  767. 


§80] 


I'DWKl;  uE  STATE  TO  REGULATE  TRAFFK  . 


105 


unconstitutional  as  being  an  abridgment  of  the  privileges  and  im- 
munities of  the  citizen  without  any  legal  justification.37 


§  86.  Prohibition  by  state — where  property  diminished  in  value. 
In  an  early  case  in  Indiana  it  is  decided  that  liquor  is  an  article 
of  use  and  traffic  in  that  state  and  is  property  as  is  also  a  distillery 
and  that  the  legislature  cannot  by  a  general  law  annihilate  the 
entire  property  in  liquors  in  that  state.38  And  in  one  of  the 
earlier  cases  upon  this  subject  decided  by  the  United  States 
Supreme  Court  it  was  declared  that  if  a  case  were  presented  in 
which  a  person  owning  liquor  or  other  property  at  a  time  a  law 
was  passed  by  the  state  absolutely  prohibiting  any  sale  of  it,  it 
would  be  a  very  grave  question  whether  such  a  law  would  not  be 
inconsistent  with  the  provision  of  that  amendment  which  forbids 
the  state  to  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law.39     And  in  a  later  case  it  was  said  by  the 


37.  State  v.  Gilman,  33  W.  Va.  146, 
10  S.  E.  283,  6  L.  R.  A.  847.  The 
court  said :  "  It  can  hardly  be  ques- 
tioned that  the  right  to  possess  prop- 
erty is  one  of  these  rigid s  and  that  the 
right  embraces  the  privilege  of  a  cit- 
izen to  keep  in  his  possession  property 
for  another.  It  is  not  denied  that  the 
keeping  of  property  which  is  inju- 
rious to  the  lives,  health  or  comfort 
of  all  persons  may  be  prohibited  un- 
der the  police  power.  *  *  *  The  keep- 
ing of  liquors  in  his  possession  by  a 
person,  whether  for  himself  or  for 
another,  unless  he  does  so  for  the  il- 
legal sale  of  it,  or  for  some  other 
improper  purpose,  can  by  no  possibil- 
ity injure  or  effect  the  health,  morals 
or  safety  of  the  public.  It  is  an 
abridgement  of  the  privileges  and 
immunities  of  the  citizen  without  any 
legal  justification,  and  therefore 
void."     Per  Snyder.  P. 

38.  Beek  v.  The  State,  6  Ind.   501, 
63  Am.  Dec.  391.  holding  that  an  act 


"to  prohibit  the  manufacture  and 
sale  of  spirituous  and  intoxicating  liq- 
uors "  was  unconstitutional  and  void. 
The  court  referred  to  §  24  of  Art.  1 
of  the  constitution  of  the  state  pro- 
viding that  no  law  shall  be  passed 
impairing  the  obligation  of  a  con- 
tract and  said:  "Yet  here  is  a  law, 
which,  by  prohibiting  an  entire  pur- 
suit and  rendering  valueless  all  the 
property  involved  in  it,  must,  of  ne- 
cessity almost,  impair  all  executing 
contracts  that  have  grown  out  of  that 
pursuit,  and  render  them  utterly  in- 
capable of   fulfillment." 

39.  Bartemeyer  v.  Iowa,  18  Wall. 
(U.  S.)  129,  21  L.  Ed.  929.  It  was 
said  in  this  case:  "  I  have  no  doubt  of 
the  power  of  the  state  to  regulate 
the  sale  of  intoxicating  liquors  when 
such  regulation  does  not  amount  to 
the  destruction  of  the  right  of  prop- 
erty in  them.  The  right  of  property 
in  an  article  involves  the  power  to 
sell    and   dispose   of   such    article   as 


106 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  86 


same  court :  "  "We  do  not  mean  to  say  that  property  actually  in 
existence,  and  in  which  the  right  of  the  owner  has  become  vested, 
may  be  taken  for  the  public  good  without  due  compensation. 
But  we  infer  that  the  liquor  in  this  case  *  *  *  was  not  in 
existence  when  the  liquor  law  of  Massachusetts  was  passed.  Had 
the  plaintiff  in  error  relied  on  the  existence  of  the  property  prior 
to  the  law,  it  behooved  it  to  show  that  fact.  But  no  such  fact  is 
shown  and  no  such  point  is  taken."  40  Subsequently  in  a  case  in 
the  United  States  Supreme  Court  in  which  it  appeared  that  the 
plaintiff  was  the  owner  of  a  brewery  and  the  prohibitory  law  of 
the  state  prohibited  not  only  the  sale  of  intoxicating  liquors,  but 
also  prohibited  their  manufacture,  and  in  which  the  evidence 
established  that  his  brewery  was  worthless  except  for  the  purpose 
of  manufacturing  beer,  the  conclusion  was  reached  that  while 
the  law  did  affect  the  value  of  plaintiff's  property  it  was  not  in 
violation  of  the  constitution  or  laws  of  the  United  States.41    And 


well  as  to  use  and  enjoy  it.  Any  act 
which  declares  that  the  owner  shall 
neither  sell  nor  dispose  of  it,  nor  use 
and  enjoy  it,  confiscates  it,  depriving 
him  of  his  property  without  due  proc- 
ess of  law.  Against  such  arbitrary 
legislation  by  any  state  the  four- 
teenth amendment  affords  protection. 
But  the  prohibition  of  sale  in  any 
way,  or  for  any  use,  i^  quite  a  differ- 
ent thing  from  a  regulation  of  the 
sale  or  use  so  as  to  protect  the  health 
and  morals  of  the  community.  All 
property  even  the  most  harmless  in 
its  nature,  is  equally  subject  to  the 
power  of  the  state,  in  this  respect  with 
the  most  noxious."  Per  Mr.  Justice 
Field. 

40.  Beer  Co.  v.  Massachusetts,  97 
U.  S.  25,  32,  24  L.  Ed.  989,  Per  Mr. 
Justice  Bradley. 

41.  Mugler  v.  Kansas,  123  U.  S. 
623,  8  Sup.  Ct.  273.  31  L.  Ed.  205. 
Mr.  Justice  Harlan  said  in  this  con- 
nection:    "It    is    contended    that    as 


their  respective  breweries  were  erected 
when  it  was  lawful  to  engage  in  the 
manufacture  of  beer  for  every  pur- 
pose ;  as  such  establishments  will  be- 
come of  no  value  as  property,  or,  at 
least,  will  be  materially  diminished 
in  value,  if  not  employed  in  the  man- 
ufacture of  beer  for  every  purpose; 
the  prohibition  upon  their  being  so 
employed,  is,  in  effect  a  taking  of 
property  for  public  use  without  com- 
pensation, and  depriving  the  citizen 
of  his  property  without  due  process  of 
law.  In  other  words,  although  the 
state,  in  the  exercise  of  her  police 
powers,  may  lawfully  prohibit  the 
manufacture  and  sale,  within  her 
limits,  of  intoxicating  liquors  to  be 
used  as  a  beverage,  legislation  hav- 
ing that  object  in  view  cannot  be  en- 
forced against  those  who,  at  the 
time,  happen  to  own  property,  the 
chief  value  of  which  consists  in  its 
fitness  for  such  manufacturing  pur- 
poses   unless    compensation    is    first 


§86] 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


HIT 


the  conclusion  reached  by  the  United  States  Supreme  Court  was 
followed  in  a  case  in  Iowa  in  which  it  was  declared  that  a  pro- 
hibitory liquor  law  was  nol  unconstitutional  on  the  ground  that  it 
reduced  the  value  of  property  previously  erected  and  used  for  the 
manufacture  and  sale  of  liquors  declared  by  the  law  to  be  intoxi- 
cating.42 And  in  an  early  case  in  Michigan  the  court  said  that  it 
negatived  the  assumption  that  because  the  defendant  had  a  large 
investment  in  money  in  buildings  and  fixtures  connected  with  his 
brewing  business  which  were  useless  for  any  other  purpose  the 
legislature  could  not  deprive  him  of  the  use  of  such  property  for 
the  purpose  for  which  it  was  designed  without  providing  compen- 
sation for  his  buildings  and  fixtures.43 


made  for  the  diminution  in  the  value 
of  their  property,  resulting  from  such 
prohibitory  enactments.  This  inter- 
pretation of  the  Fourteenth  Amend- 
ment is  inadmissible.  It  cannot  be 
supposed  that  the  states  intended, 
by  adopting  that  Amendment  to  im- 
pare  restraints  upon  the  exercise  of 
their  powers  for  the  protection  of  the 
safety,  health  or  morals  of  the  com- 
munity. *  *  *  The  principle,  that 
no  person  shall  be  deprived  of  life, 
liberty,  or  property,  without  due  proc- 
ess of  law  was  embodied  in  substance, 
in  the  constitutions  of  nearly  all,  if 
not  all,  of  the  states  at  the  time 
of  the  adoption  of  the  Fourteenth 
Amendment :  and  it  has  never  been  re- 
garded as  incompatible  with  the  prin- 
cipal, equally  vital,  because  essential 
to  the  peace  and  safety  of  society,  that 
all  property  in  this  county  is  held  un- 
der the  implied  obligation  that  the 
one  is  use  of  it  shall  not  be  in- 
jurious to  the  community.  *  *  * 
The  exercise  of  the  police  power  by 
the  destruction  of  property  which  is 
itself  a  public  nuisance,  or  tie  pro- 
hibition of  its  use  in  a  particular 
way.  whereby  its  value  becomes  de- 
preciated, is  very  different  from  tak- 


ing property  for  public  use,  or  from 
depriving  a  person  of  his  property 
without  due  process  of  law.  In  the 
one  case,  a  nuisance  only  is  abated ; 
in  the  other  unoffending  property  is 
taken  from  an  innocent  owner.  It 
is  true,  that,  when  the  defendants  in 
these  cases  purchased  or  erected  their 
breweries,  the  laws  of  the  state  did 
not  forbid  the  manufacture  of  in- 
toxicating liquors.  But  the  state  did 
not  thereby  give  any  assurance,  or 
come  under  an  obligation,  that  its 
legislation  upon  that  subject  would 
remain  unchanged," 

42.  Kaufman  v.  Dostal,  73  Iowa 
691,  36  X.  YV.  G43.  The  evidence  in 
this  case  showed  that  the  defendant 
was  engaged  in  the  manufacture  of 
beer,  that  the  brewery  had  been  es- 
tablished on  the  same  premises  sev- 
eral years  prior  t<>  the  passing  of  the 
statute  under  which  the  action  was 
commenced;  thai  the  brewery  was 
worth  for  the  purpose  for  which  it 
was  erected,  about  $60,000,  and  that 
for  any  other  purpose,  the  brewery 
and  real  estate  described  in  the  pe- 
1  it  inn     was     not     worth     more     than 

ooo. 

•«:*.  IVo-le  v.  Hawley,  3  Midi.  330. 


108  POWER  OF  STATE  TO  REGULATE  TRAFFIC.      [§§   87,88 

§  87.  Same  subject  continued. 

Property  in  an  article  is  the  right  to  have  and  use  it  subject  to 
law.  The  right  of  sale  is  not  an  essential  ingredient  which  may 
not  be  separated  from  the  ownership;  and  a  law  regulating  or 
prohibiting  the  sale,  does  not  take  away  any  vested  right  of  prop- 
erty.44 There  is  no  vested  right  acquired  by  those  engaged  in 
the  liquor  traffic,  which  prevents  its  being  forbidden  by  an  act  of 
the  general  assembly.45  In  the  exercise  of  its  police  powers,  a 
state  may  prohibit  under  penalties  the  exercise  of  any  trade  or 
employment  which  is  found  to  be  hazardous  or  injurious  to  its 
citizens,  without  providing  compensation  to  those  upon  whom 
the  prohibition  operates.46  So  in  a  case  in  New  York  it  is  said 
that  prohibiting  the  sale  of  liquor  does  not  destroy  it  as  property 
and  that  although  unconstitutional  to  pass  laws  depriving  a  citi- 
zen of  his  property,  a  law,  the  tendency  of  which  is  to  reduce  the 
price  of  certain  species  of  property  in  the  market,  will  not,  for 
that  reason,  be  declared  unconstitutional.47 

§  88.  Prohibition  as  affecting  property  values  concluded. 

From  an  examination  of  the  cases  cited  in  the  preceding  sec- 
tions it  will  be  seen  that  the  law  is  settled  that  independent  of 
any  constitutional  limitation  the  power  of  the  legislature  to  pro- 
hibit the  liquor  traffic  except  so  far  as  interstate  commerce  may  be 
affected  is  absolute,  while  the  facts  may  be  that  property  has 
been  purchased  and  money  expended  in  the  erection  of  a  plant  for 
the  manufacture  of  intoxicating  liquors  and  that  such  manufacure 
was  lawful  at  the  time   and  that  the  property  will  be  greatly 

342,  in  which  case  it  was  further  said:  whom  the  prohibition  operates."    Per 

"  In   the  exorcise  of  its  police  power  Wing,  J. 

a    state   has    full    power    to    prohibit  44.  State    v.     Allmond,     2     Houst. 

under   penalties   the   exercise   of   any  (Del.)   612. 

trade  or  employment  which  is  found  45.  Guy  v.   Commissioners,   122  N. 

to   be  hazardous   or   injurious  to   its  C.  471,  29  S.  E.  771. 

citizens    and    destructive   of   the   best  46.  People  v.  Hawley,  3  Mich.  330. 

interests   of   society,   without   provid-  47.  People  v.   Quant,    12   How.  Pr. 

ing     compensation     to     those     upon  (N.  Y.)    83,  89.     Per  James,  J. 


§  gj)]  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  109 

diminished  in  value  or  the  plant  rendered  practically  valueless 
by  the  enactment  of  a  prohibitory  law  yet  the  state  may  in  the 
•  xcrcise  of  the  police  power  pass  a  law  which  absolutely  prohibits 
the  sale  or  the  manufacture  of  such  liquors.  Such  a  rule  may  at 
first  seem  to  work  a  hardship  and  naturally  does  to  the  person 
who  has  invested  his  money  in  such  an  enterprise.  It  must  how- 
1  vi  it  be  remembered  that  the  decisions  are  uniform  that  the  right 
to  sell  or  manufacture  intoxicating  liquors  is  not  an  inherent 
one.  It  is  a  mere  privilege  which  a  citizen  may  exercise  and  is 
subject  to  the  right  of  the  state  to  legislate  in  regard  thereto 
whenever  the  public  morals,  health,  safety  or  peace  may  require 
it.  Therefore  since  the  right  to  traffic  in  liquor  is  of  such  a  char- 
acter and  the  traffic  therein  so  vitally  affects  the  public,  being  the 
frequent  cause  of  disorder  and  pauperism,  the  source  of  injury 
to  the  health,  and  demoralizing  in  its  effect  it  should  follow  that 
the  state  should  have  full  and  comprehensive  power  to  entirely 
prohibit  the  traffic  therein  without  being  hampered  in  any  way 
by  the  effect  such  legislation  may  have  upon  property  values. 

§  89.  Power  of  state  to  engage  in  liquor  traffic. 

The  state  under  its  police  force  can  itself  assume  entire  control 
and  management  of  those  subjects,  such  as  liquor,  that  are  danger- 
ous to  the  peace,  good  order,  health,  morals  and  welfare  of  the 
people  even  when  trade  is  one  of  the  incidents  of  such  entire  con- 
trol and  management  on  the  part  of  the  state.48  This  power  of 
the  state  is  generally  exercised  through  state  or  local  agents  or  by 
means  of  what  are  known  as  dispensaries,  the  liquors  being  bought 
and  sold  by  the  state  or  local  government  alone  through  such 
agencies,  subject  frequently  to  conditions  by  which  the  sale  is 

48.  State   v.   Aiken,   42   S.   C.   222,  trade  is  simply  an  incident  of  police 

20  S.  E.  221,  2G  L.  R.  A.   345.     Per  regulation  and  so  long  as  buying  and 

Mr.   Justice  Gary,   who   also   says   in  selling  are  in  pursuance  of  police  reg- 

this  connection  that  the  right  of  the  illation    they    are   entirely   free   from 

state  to  engage  in  liquor  traffic  where  legal  objection. 


1U)  \KK  OF  STATE  TO  REGULATE  TRAFFIC.  [§  90 

restricted  to  medical,  chemical  or  mechanical  purposes.  These 
laws  as  to  dispensaries  have  in  some  cases  been  held  to  be  uncon- 
stitutional as  being  in  conflict  with  the  commerce  clause  of  the 
United  States  Constitution.  Independent  however,  of.  any  con- 
flict with  this  power  of  the  Federal  government  these  laws  have 
in  most  cases  been  sustained,  as  will  be  seen  from  the  following 
sections.  And  it  would  seem  that  in  enacting  such  laws  the 
legislature  should  look  particularly,  if  the  act  is  to  be  sustained, 
to  the  exclusion  of  any  provision  in  such  a  statute  which  conflicts 
with  this  clause  of  the  United  States  Constitution. 

§  90.  Dispensary  laws — Alabama  decisions. 

The  question  of  the  constitutionality  of  dispensary  laws,  both 
under  state  constitutions  and  the  United  States  Constitution,  is 
one  which  has  been  before  the  courts  several  times  in  recent  years 
and  has  been  considered  in  its  many  phases.     In  a  case  in  Ala- 
bama in  which  the  validity  of  an  act  was  questioned  upon  numer- 
ous grounds  its  constitutionality  was  sustained  by  the  court  in  a 
lengthy  opinion.     In  this  case  it  was  decided  that  the  section  of 
a  dispensary  law  which  prohibits  the  sale  of  vinous,  sprituous  or 
malt  liquors  in  any  county  of  the  state  in  which  a  dispensary  is 
authorized  to  be  located,  except  as  provided  for  in  said  act,  and 
which  then  further  provides  that  "  nothing  in  this  act  shall  be  so 
considered  as  to  prevent  any  person  who  manufactures  spirituous, 
vinous  or  malt  liquors  in  a  brewery  or  distillery  from  selling  the 
same  by  wholesale  in  sealed  packages,  to  dispensers  or  to  liquor 
dealers  who  may  be  otherwise  authorized  to  sell  such  liquors  "  has 
reference  solely  to  counties  in  the  state  in  which  dispensaries  are 
authorized  to  be  located,  and  that  neither  the  prohibition  of  the 
.  section  nor  the  proviso  has  any  reference  to  sales  by  distillers  or 
brewers  or  dealers  or  other  persons  made  without  the  county  and 
that  therefore  such  section  of  the  act  does  not,  in  any  way,  in- 
fringe upon  the  exclusive  power  of  Congress  to  regulate  interstate 
commerce,  nor  has  it  any  application  to  any  phase  of  interstate 


§  90]  row;...  lTE  to  regi  late  traffk  .  m 

commerce.49    It  was  also  declared  in  this  case  that  the  legislature 
having  the   right    to   prohibit    entirely   the   sale   of   intoxicating 
liquors,  may,  by  act  passu!  for  that  purpose,  prohibit  its  sale  by 
individuals  and  private  corporations,  and  commit  the  traffic  ex- 
clusively as  a  mode  of  regulation  to  counties  and  towns  without 
violating  any  inalienable  right  of  the  pursuit  of  happiness,  or 
other  right  by  the  individual  citizen,  and  without  infringing  upon 
the  rule  against  class  and  unequal  legislation.     And  it  was  also 
held  that  the  act  was  not  the  establishment  of  a  private  enterprise 
in  which  the  state  is  interested  in  violation  of  the  constitution. 
And  it  was  further  decided  that  a  dispensary  law  is  not  violative 
of  a  constitutional  provision  that  "  no  corporation  shall  engage 
in  any  business  other  than  that  expressly  authorized  by  its  char- 
ter "  since  such  provision  has  reference  only  to  private  corpo- 
rations.   And  the  conclusion  was  also  reached  that  the  dispensary 
law  is  not  violative  of  a  constitutional  provision  that  "  no  law 
hereafter  enacted  shall  create,  renew  or  extend  the  charter  of 
more  than  one  corporation,"  since  conferring  on  towns,  cities  and 
counties  the  power  to  sell  spirituous,  vinous  or  malt  liquors  does 
not  create,   renew  or  extend   the  charters   of  such  corporations 
within  the  meaning  of  such  provision  which  has  no  application 
to  municipalities  but   to  private   corporations.      And   the   court 
likewise  decided  that  where  by  a  genera]  law  the  establishment 
of   dispensaries    in   cities   and    towns    is   authorized    and    a    dis- 
pensary is  established  in  a  town  under  the  provisions  of  such  act, 
a  local  law  regulating  the  method  of  obtaining  licenses  for  the 
Bale  of  liquors  therein  is  repealed  and  such  local  laws  are  not 
such  laws  as  tend  "  to  prohibit,   retard,   restrain  or  restrict  the 
traffic     in  spirituous,  vinous  or  malt  liquors  "  which  are  by  the 
dispensary  law  expressly  excluded  from  the  repealing  clause  of 
the  act.     And  in  a  later  case  in  this  state  a  dispensary  act  author- 
izing all  incorporated   towns   and   cities   in   a  certain  county  to 

4J>.  Sheppard  v.  Dowling,  127  Ala.  1.  28  S.  E.  791,  85  Am.  St.  Rep.  68. 


112 


POWER  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  90 


establish  and  operate  dispensaries  was  held  valid.50  And  again 
in  a  more  recent  case  it  is  decided  that  an  act  which  delegates 
authority  to  a  municipality  to  operate  and  maintain  a  dispensary 
for  the  town  with  corporate  funds,  gives  the  town  the  authority  to 
elect  the  commissioners  every  four  years,  provides  that  the  busi- 
ness shall  be  conducted  by  the  intendant  and  aldermen  through 
a  dispenser  and  the  commissioners,  requires  daily  reports  to  be 
made  to  the  town  treasurer,  and  appropriates  the  profits  arising 
from  the  business  to  the  town  for  the  schools  and  such  other  ob- 
jects and  purposes  as  may  be  designated  by  the  town  is  not  void 
as  conferring  legislative  authority  upon  the  town.51  In  another 
case  in  Alabama  however  an  act  to  establish  a  dispensary  in  a 
town  was  held  unconstitutional  and  void  in  that  it  sought  to  con- 
fer upon  the  commissioners  therein  named  and  their  successors 
or  the  corporation  itself,  the  power  to  manage,  carry  on  and  if 
they  saw  fit,  to  suspend  or  discontinue  the  pharmacy.52  And  in 
this  state  the  act  approved  Oct.  1st,  1903,  entitled:  "An  act  to 
establish  and  regulate  a  dispensary  in  the  town  of  Elba,  Coffee 


50.  Childers  v.  Sheppard,  142  Ala. 
385,   39  So.  235. 

51.  Ex  parte  Hall,  (Ala.  1908), 
47  So.  199.  The  court  said:  "The 
act  makes  it  unlawful  to  sell  liquors 
in  said  town,  except  by  a  dispensary ; 
and  this  is  legislation  by  the  legisla- 
ture and  no  delegation  to  the  town. 
All  authority  given  the  town  is  sim- 
ply to  avail  itself  of  the  exception 
made;  otherwise,  prohibition  should 
prevail,  under  the  act  of  the  legis- 
lature. Clearly  the  legislature  would 
have  the  right  to  prohibit  the  sale 
of  liquors,  except  through  an  author- 
ized dispensary:  and  the  fact  that 
the  opening  of  the  dispensary  is  not 
made  mandatory  in  no  sense  gives  the 
municipality  the  authority  to  legis- 
late, nor  docs  it  legislate  by  failing 
to    open    said    dispensary.      Moreover 


there  is  nothing  in  the  act  authoriz- 
ing the  town  to  discontinue  at  will; 
but,  if  there  was,  we  think  this  option 
can  be  delegated  to  a  municipality, 
the  exercise  of  which  would  in  no 
sense  be  legislation  on  its  part."  Per 
Anderson,  J. 

The  operation  of  a  dispensary  by  a 
municipality  for  the  sale  of  liquor  is 
the  exercise  of  a  franchise,  and  the 
municipality  must  derive  its  right 
from  some  authority  granted  by  the 
sovereign.  City  of  Uniontown  v. 
State,  145  Ala.  471,  39  So.  814. 

52.  Harlan  v.  State,  13G  Ala.  150, 
33  So.  858,  following  Mitchell  v. 
State,  134  Ala.  392,  32  So.  687,  in 
which  such  an  act  was  held  unconsti- 
tutional in  that,  by  so  doing,  it 
sought  to  delegate  legislative  powers. 


§  91]  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  H3 

County,  Alabama,  for  the  sale  of  spirituous,  vinous  and  malt 
liquors,  and  to  establish  and  perpetuate  board  of  commissioners 
for  the  management  of  said  dispensary"  (Local  Acts  1003, 
p.  443)  was  held  to  be  unconstitutional  and  void,  in  that  by  its 
terms  said  act  granted  an  exclusive  right  to  the  commissioners 
provided  for  therein  as  individuals,  and  their  successors  to  estab- 
lish and  maintain  a  dispensary,  and  thereby  traffic  in  liquor  in 
the  town  of  Elba,  and  was  therefore  in  violation  of  the  organic 
law  prohibiting  monopolies.53  The  court  in  construing  this  act 
declared  that  by  its  terms  the  money  for  creating  the  dispensary 
came  from  no  governmental  source  but  was  to  be  derived  solely 
from  individuals,  that  the  dispensary  was  neither  the  property  of 
the  state,  county  or  town  and  was  not  controlled  by  any  govern- 
mental agency  but  by  the  board  of  managers  or  commissioners 
whose  duties  were  to  superintend  and  supervise  and  who  had 
the  exclusive  right  to  appoint  a  dispenser  and  to  remove  him  and 
appoint  another  whose  duty  it  was  to  sell  for  cash  and  turn  the 
money  over  to  the  secretary  of  the  board  who  was  also  selected  by 
such  commissioners. 

§  91.  Dispensary  laws — Other  decisions. 

In  Georgia  it  has  been  decided  that  the  general  assembly  of  that 
state,  by  virtue  of  its  police  powers,  has  the  authority  to  regulate 
and  control  the  sale  of  all  intoxicating  liquors  and  can  establish 
dispensaries  for  an  exclusive  sale  of  such  liquors,  under  the 
management  of  agents  or  officials  created  for  this  purpose.54  And 
it  was  also  held  in  the  same  case  that  a  local  act  estalishing  a  dis- 
pensary in  any  county  of  the  state  for  the  exclusive  sale  of  liquors 
is  not  violative  of  tin1  constitutional  rights  of  any  citizen  and 
such  legislation  is  not  prohibited  by  any  provision  in  the  constitu- 


r»3.  Town   of   Elba    v.    Rhodes,    142       30  S.   E.   759,   42  L.  R.   A.   181. 
Ala.  680,  38  So.  SOT.  •"»>»•  Butler  v.  Merritt.  113  Ga.  238, 

R4.  Plumb  v.  Christie,  103  Ga.  686,       38  S.  E.  751. 


114  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  [§  91 

tion  of  the  state  or  of  the  United  States.     And  in  a  later  case  in 
Georgia  it  was  held  that  the  local  option  law  did  not  name  the 
state  or  manifest   any  intention  to  include  the  state  within  its 
operations  and  therefore  such  a  law  does  not  prohibit  the  state 
from    establishing    and    maintaining    dispensaries    for    the    sale 
of  intoxicating  liquors,  through  public  officers,  for  public  profit 
and  for  the  regulation  of  the  liquor  traffic.54 a     And  in  a  case 
in   South   Carolina   it  was   decided  that   while   a   section  of   an 
act    prescribes    a    method    of    establishing    dispensaries    in    one 
county  different  from  other  sections  of  the  state  yet  where  the 
provisions   of   such   section   are   general   in  their   application   to 
the   class   or   locality   to   which   they    apply    and    apply   equally 
to  all  persons  within  that  locality  the  act  is  constitutional  and 
neither  deprives  the  citizens  of  that  locality  of  equal  protection  of 
the  law  nor  is  it  subject  to  the  objection  that  it  is  a  special  act.55 
And  in  an  earlier  case  in  the  same  state  it  was  said  upon  this 
question  of  the  power  of  the  state  to  assume  control  of  the  liquor 
traffic  by  a  dispensary  law  that  it  would  be  an  anomaly  in  the 
law  to  hold  that  the  principal  could  delegate  to  an  agent  a  greater 
power  than  the  principal  himself  could  exercise.56     Again  in  a 
case  in  Virginia  it  is  decided  that  the  legislature  may  permit  a 
municipality  to  establish  a  dispensary,  though  in  so  doing  it  may 
render  necessary  the  expenditure  of  money  and  ultimately  the 
imposition  of  a  tax.57     But  it  has  also  been  decided  in  this  con- 
nection in  North  Carolina  that  the  power  to  authorize  municipal 

55.  Severance  v.  Murphy,  67  S.  C.  looking  to  the  ascertainment  of  public 

400,  46  S.  E.  35.  opinion  on  the  subject  have  not  been 

In    South    Carolina    it    is    decided  may  be  maintained  by  one  who  is  a 

that   a   county  dispensary  board   has  resident    and    taxpayer    of    the    town 

the   implied   power   to   establish    and  though    he    may    not   be    a    qualified 

maintain   a  bottling  plant.      State  v.  voter.     Croxton  v.  Truesdel,  75  S.  C. 

Cain,  78  S.  C.  348,  58  S.  E.  937.  418,  50  S.  E.  45. 

An  action  for  an  injunction  to  pre-  5«.  Stale  v.   Aiken,   42   S.   C.   222, 

vent  the  location  of  a  dispensary  in  20  S.  E.  221.  26  L.  R.  A.  345. 

a  town   on   the  ground  that  the  pre-  r~-  Farmville    v.    Walker,    101    Va. 

liminary    steps    required    by    statute  323,  43  S.  E.  558,  61  L.  R.  A.  125. 


§  92]  POWER  OF  STATE  TO  REG1  LATE  TRAFFIC.  \\~, 

authorities  to  raise  money  by  taxation,  or  by  loan,  or  by  pled- 
credit,  for  the  purpose  of  aiding  others  in  the  sale  of  liquors,  or 
to  be  used  by  the  bodies  themselves  for  that  purpose,  without  a 
vote  of  the  people,  clearly  cannot  be  exercised  because  such  money 
and  the  purposes  for  which  it  is  used  cannot  be  called  necessary 
expenses  of  the  municipal  bodies.58 

§  92.  Dispensary  laws — federal  decisions. 

In  a  case  in  the  United  States  Circuit  Court  it  was  held  that 
an  act  which  permits  the  chief  dispenser  to  purchase  in  other 
states  alcoholic  liquors,  and  to  import  them  into  his  own  state 
for  the  purpose  of  selling  them,  for  use  and  consumption,  at 
retail  within  the  state,  and  forbids  all  other  persons  from  so 
purchasing  and  importing  for  their  individual  use  and  consump- 
tion, discriminates  against  all  other  citizens  of  the  state.59  And 
such  an  act  was  held  to  make  a  discrimination  against  all  persons 
in  the  trade  in  other  states  wTho  are  not  patronized  by  the  dis- 
penser by  forbidding  them  to  seek  customers  within  the  state 
and  to  enjoy  a  commercial  intercourse  secured  to  others  in  the 
state.60  And  it  was  also  said  in  this  case  that  so  far  as  the  dis- 
pensary law  forbids  a  citizen  to  purchase  in  other  states  and  to 
import  into  his  own  state,  alcoholic  liquors  for  his  own  use  and 
consumption,  the  products  of  other  states,  it  discriminates  against 
the  products  of  other  states  and  such  discrimination  cannot  be 
made  under  the  guise  of  the  police  power.61  The  constitutionality 
of  this  act  was  subsequently  considered  by  the  United  States 
Supreme  Court  on  an  appeal  from  the  decision  just  referred  to 
and  it  was  declared  that  the  act  did  not  prohibit  the  manufacture 
use,  and  sale  of  intoxicating  liquors  but  on  the  contrary  recognized 
such  liquors  as  commodities  which  could  be  lawfully  made,  bought 

58.  Garsed    v.    Greensboro,    120   N.  G°-  Donald   v.    Scott.   67   Fed.   854. 

C.  159.  35  S.  E.  254.  61.  Donald    v.    Scott,   G7   Fed.   854, 

BO.  Donald   v.   Scott,   G7    Fed.   854,  857.     Per  Simonton,  J. 
857. 


116        POWER  OF  STATE  TO  REGULATE  TRAFFIC.       [§  93 

and  sold  and  must  therefore  be  deemed  to  be  the  subject  of 
foreign  and  interstate  commerce  and  that  the  law  was  unconstitu- 
tional as  an  obstruction  to  and  interference  with  that  commerce.62 
The  act  in  question  provided  among  other  things  that  there  should 
be  a  chief  state  commissioner  by  whom  all  liquors  to  be  sold 
within  the  state  should  be  purchased  and  that  the  local  dispensers 
should  obtain  their  supply  of  liquors  from  him.  The  law  did  not 
forbid  the  manufacture  of  such  liquors  within  the  state  but  rather 
recognized  the  right  to  manufacture  them  by  providing  that  per- 
sons desiring  to  manufacture  within  the  state  should  first  obtain 
from  the  state  board  a  license  or  permit  to  do  so  and  that  such 
manufacturers  should  be  allowed  to  sell  to  no  person  in  the  state 
except  the  state  commissioner  and  to  parties  outside  the  state 
and  that  such  commissioner  should  purchase  his  supplies  from  the 
brewers  and  distillers  within  the  state  when  their  product  reached 
the  standard  required  by  the  act  provided  that  such  supplies  could 
be  bought  from  such  brewers  and  distillers  as  cheaply  as  they 
could  elsewhere.  The  act  also  provided  that  the  state  commis- 
sioner might  enter  into  contracts  with  responsible  grape-growers 
within  the  state  for  the  sale  of  domestic  wines  through  the  dis- 
pensary so  as  to  encourage  grape  growing  within  the  state  and 
that  in  furtherance  of  such  provision  not  more  than  ten  per 
cent  profit  to  the  dispensary  over  the  expense  of  bottling,  freight- 
ing etc.,  should  be  charged  for  the  handling  of  such  wines 

§  93.  Dispensary  laws — question  as  to  creating  monopoly. 

In  North  Carolina  it  has  been  decided  that  the  dispensary 
system  does  not  create  a  monopoly  in  the  offensive  sense  of  the 
term  and  is  not  unconstitutional  on  such  ground.63     And  in  a 


«2.  Scott  v.  Donald,   165  U.   S.  58,  63.  Garsed   v.    Greensboro,    126   N. 

17  Sup.  Ct.  265,  41  L.  Ed.  632,  con-  C.   150,   35   S.   E.  254.     Guy  v.  Cora- 

struing  Dispensary   Act  of  S.  C.   ap-  missioners,   122   N.   C.   471,   29   S.   E. 

proved  Jan.  2,   1805.  771. 


§§  94  95, 96]      POWER  OF  STATE  TO  REGULATE  TRAFFIC.  117 

case  in  South  Carolina  it  is  said  that  the  doctrine  of  monopoly 
cannot  be  applied  to  a  state  in  exercising  its  governmental  func- 
tions.04 And  in  Georgia  it  has  been  decided  that  a  monopoly 
in  such  a  business  thus  created  by  the  legislature,  by  conferring 
the  exclusive  privilege  of  engaging  in  such  a  traffic  upon  a  body 
corporate,  is  not  violative  of  a  constitutional  provision  prohibiting 
the  passage  of  any  law  making  irrevocable  grants  of  special 
privilege  or  immunities.65 

§  94.  Dispensary  act — Power  of  mayor  to  enforce  action  under. 
Though  a  dispensary  act  imposes  certain  duties  upon  a  judge 
of  probate  in  connection  with"  the  appointment  of  a  dispenser 
under  such  act  and  also  imposes  upon  the  mayor  and  other  ex- 
ecutive officers  of  a  city  the  duty  to  certify  the  fact  of  vacancy  in 
the  office  of  dispenser  to  the  judge  of  probate;  yet  this  confers 
upon  the  mayor  no  right  to  enforce  by  mandamus  the  perform- 
ance by  such  judge  of  his  duty,  such  duty  being  one  owing  to  the 
municipality  and  not  to  the  mayor  as  its  officer.66 

§  95.  Sales  by  dispensers  after  dispensary  abolished. 

Where  a  dispensary  for  the  sale  of  liquor  has  been  abolished 
by  a  valid  act  of  the  general  assembly,  and  the  individuals  who, 
under  the  act  providing  for  its  establishment,  have  been  the 
dispensary  commissioners,  continue  the  sale  of  liquor,  such  sale 
is  illegal.67 

§  96.  Town  and  city  agents  to  purchase  and  sell. 

Laws  authorizing  the  appointment  of  town  or  city  agents 
for  the  purchase  and  sale  of  intoxicating  liquors  was  one  of 
the  earlier  means  devised  for  the  control  and  regulation  of  the 
liquor  traffic.     So  in  some  cases  statutes  have  been  passed  pro- 

04.  State  v.   Aiken,   42   S.   C.   222,  66.  Rose  v.  Larapley.  146  Ala.  445. 

20  S.  E.  221,  20  L.  R.  A.  345.  41   So.  521. 

66.  Plumb  v.  Christie.  103  Ga.  686,  67.  Dispensary    Commissioners    v. 

30  S.  E.  759,  42  L.  R.  A.  181.  Hooper,  128  Ga.  99,  56  S.  E.  997. 


118  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  [§97 

bibiting  tbe  sale  of  intoxicating  liquors  except  for  certain  pur- 
poses and  authorizing  the  local  authorities  in  a  city  or  town  to 
appoint  an  agent  by  whom  such  sales  shall  be  made  and  requiring 
the  giving  of  a  bond  by  him.68  As  a  general  rule  the  constitution- 
ality of  these  statutes  has  not  been  the  subject  of  much  question. 
In  an  early  case  in  Vermont,  however,  "  an  act  to  prevent  traffic 
in  intoxicating  liquors  for  the  purpose  of  drinking,"  was  held  to 
be  unconstitutional,  in  so  far  as  it  authorized  the  agent,  ap- 
pointed by  the  county  commissioner,  to  purchase  liquors  at  the 
expense  of  the  town,  for  which  he  was  appointed,  without  its 
assent  either  express  or  implied,  or  without  giving  indemnity 
to  the  town  for  the  faithful  execution  of  the  duties  of  his  agency.69 

§  97.  Same  subject — liabilities  and  rights  of  towns. 

Authority  to  a  town  to  sell  spirituous  liquors  for  specified 
purposes  implies  an  authority  to  purchase  them  and  a  sale  to  the 
selectmen  of  a  town  is  held  to  be  a  sale  to  the  town  and  the  vendor 
may  recover  their  value  from  the  town.70  So  where  cities  and 
towns  are  directed  by  statute  to  appoint  agents  for  the  purchase 
and  sale  of  spirituous  and  intoxicating  liquors  for  specified  pur- 
poses, the  duly  appointed  agent  or  agents  or  the  selectmen  may, 
it  has  been  decided,  purchase  upon  the  credit  of  the  town  the 
necessary  liquors  and  the  selectmen  may  bind  the  town  by  a  note 
given  for  the  price  thereof.71  But  under  a  statute  making  it  the 
duty  of  the  selectmen  of  a  town  to  appoint  an  agent  or  agents 
for  the  sale  of  intoxicating  liquors  for  the  purposes  specified  in 
the  statute,  it  has  been  decided  that  the  selectmen  cannot  act  as 
agents  or  appoint  one  of  their  number  to  act  as  agent.72     And 

68.  Commonwealth  v.  Pillsbury,  12  70.  Kidder  v.  Knox,  48  Me.  551. 
Gray    QTass.)    127;    Dover  v.   Twora-  71.  Great  Falls  Bank  v.   Farming- 
bly,  42  X.  If.  59.                                             ton,  41  X.  H.  32. 

See    also   other   cases   cited   in   the  72.  Richards  v.  Columbia,  55  N.  H. 

three  following  sections.  96.      Compare    Rowe    v.    Edmonds,    3 

69.  Atkins    v.    Town    of    Randolph,  Allen    (Mass.)    334. 
31  Vt.  226. 


§  98]  POWER  OF  STATE  TO  REGULATE  TRAFFH  .  119 

where  the  statute  provides  for  the  appointment  of  a  state  agenl 
to  furnish  liquor  to  towns  and  that  after  the  appointment  all 
purchases  by  town  agents  shall  be  from  such  persons,  towns  will 
not  be  liable  for  liquors  purchased  by  their  agents  from  others 
than  the  state  agent  subsequent  to  his  appointment.73  One  who 
has  been  an  agent  of  a  town  to  purchase  and  sell  intoxicating 
liquors  is  the  agent  of  the  town  for  that  purpose  and  the  liquors 
purchased  by  him  in  pursuance  of  that  appointment  belong  to  the 
town,  to  which  he  must  account  at  the  termination  of  his  agency.74 

§  98.  Same  subject — power  of  agents. 

An  agent  to  sell  is  not  necessarily  an  agent  to  purchase  and 
where  in  the  appointment  by  the  selectmen  of  a  town  of  an  agenl 
to  sell  intoxicating  liquors  the  specific  power  to  purchase  is  not 
given  it  has  been  decided  that  the  selectmen  are  the  proper  agents 
to  act  for  the  towns  in  this  respect.75  And  where  by  statute  the 
selectmen  are  empowered  to  prescribe  rules  to  be  observed  by 
the  agent  appointed  by  it,  they  may  prescribe  rules  both  in  respect 
to  the  purchase  and  sale  of  the  liquors,  but  such  rules  must  not 
be  so  stringent  as  to  defeat  the  purpose  of  the  law.76  And  where 
sales  by  a  town  agent  are  only  authorized  under  certain  cir- 
cumstances and  conditions,  such  circumstances  must  exist  and 
the  conditions  be  complied  with  in  order  to  render  the  sale  legal 
within  the  statute.77 

73.  Lauten  v.  Allentown,  58  N.  H.  appointment  "  which  shall  be  recorded 
289.  by  the  clerk  of  the  city,  town  or  place, 

74.  Inhabitants  of  Washington  v.  together  with  the  rules  prescribed  for 
Eames.  (i  Allen   (Mass.)  417.  his  observance,  Buch  certificate  when 

Money    received    by    the    town  duly  recorded  charges  every  one  with 

liquor  agent  for  liquors  legally  sold  notice  of  the  limitation  upon  his  au- 

by  him  as  sue):  agent  is  presumed  to  thority  prescribed  therein.     Backman 

be  the  money  of  the  town.     Leming-  v.  Charlestown,  42  X.  11.  125. 
ton  v.   Blodgett,   37   N't.  215.  70-  Backman  v.  Charlestown,   12  X. 

75.  Kidder   v.   Knox,   4S   Me.   551.  H.   125. 

As   to   notice    of   power.— Where  77.  State  v.  Fisher,  35  Vt.  584. 

the    statute    provides    thai     such     an  Where     sales     to     town     agent 

agent  shall  receive  a  certificate  of  his       must  be  for  cash.— Where  the  stat- 


120 


POWEE  OF  STATE  TO  REGULATE  TRAFFIC. 


[§  90 


§  99.  Same  subject — power  of  agent  to  delegate  authority. 

The  agent  appointed  by  the  selectmen  of  a  no-license  town  to 
sell   spirituous   and  intoxicating   liquors   for  sacramental,   medi- 


ute  provides  that  sales  made  to  the 
town  by  the  state  agent  to  agents 
"  shall  be  made  for  cash  "  liquors  so 
sold  must  be  paid  for  on  delivery,  and 
it  has  been  decided  that  a  state  agent 
cannot  recover  from  a  town  the  price 
of  liquors  which  have  not  been  so  paid 
for  it  being  declared  that  the  author- 
ity of  the  town  agent  is  limited  to 
purchases  for  cash  and  that  if  the 
seller  delivers  the  articles  sold  with- 
out such  payment,  he  does  so  in  his 
own  wrong  and  cannot  look  to  the 
principal.  Mansfield  v.  Inhabitants 
of  Stoneham,  15  Gray  (Mass.)   149. 

As  to  making  of  application  to 
agent. — In  a  prosecution  against  a 
town  agent  for  a  sale  of  liquor,  where 
the  law  as  to  the  making  of  an  ap- 
plication has  not  been  complied  with 
evidence  is  not  admissible  to  prove 
his  general  reputation  for  prudence 
and  caution  in  the  discharge  of  his 
duties  as  agent.  State  v.  Fisher,  35 
Vt.  584. 

Sale  to  a  minor. — In  Maine  a  sale 
by  a  town  agent  to  a  minor,  without 
the  written  order  of  his  parent  or 
guardian  was  forbidden  by  the  Act 
of  1853.  State  v.  Fairfield,  37  Me. 
517. 

Sale  by  agent  for  his  own  pro- 
fit.—The  fact  that  one  is  the  duly  ap- 
pointed agent  of  a  town  to  sell  intoxi- 
cating liquors,  furnishes  no  protection 
against  prosecutions  for  selling  liq- 
uor if  the  property  in  and  the  prof- 
its of  selling  it  are  his.  The  court 
said:  "To  allow  the  defendant  un- 
der the  circumstances  of  this  case 
the  protection  which  lie  claims  as 
ajrent.  when  the  ease  finds  he  was  not 
in  fact  agent,  but  was  the  principal 
in   all   the  sales   made   and  alone  in- 


terested in  the  profits,  would  be  to  re- 
peal the  statute."  State  v.  Put- 
nam, 38  Me.  296.     Per  Appleton,  J. 

In  an  action  by  a  town  to  re- 
cover the  value  of  liquors  sold 
by  an  agent  whom  it  is  claimed  was 
appointed  under  a  statute  authorizing 
the  selection  of  a  town  to  appoint  an 
agent  to  sell  intoxicating  liquors  for 
mechanical  and  medicinal  purposes  it 
is  essential  to  show  that  such  person 
was  in  fact  appointed  as  agent.  Fox- 
croft  v.  Crooker,  40  Me.  308. 

Where  the  statute  requires  a 
town  agent  to  keep  a  record  con- 
taining the  names  of  the  persons  to 
whom  each  sale  is  made  and  the  kind, 
quantity  and  price  of  the  liquor  sold, 
a  negligent  omission  to  do  so,  even  if 
not  wilful  or  fraudulent  is  a  violation 
of  the  statute.  Inhabitants  of  Wen- 
ham  v.  Dodge,  98  Mass.  474. 

Bills  of  parcels  as  an  account 
of  purchases. — Bills  of  parcels 
bought  by  an  agent  of  the  town  con- 
taining in  substance  the  particulars 
required  by  the  statute  directing  him 
to  keep  an  account  of  all  purchases  by 
him  are  a  sufficient  compliance  with 
the  statute.  Inhabitants  of  Wenham 
v.  Dodge,  98  Mass.  474. 

As  to  time  of  settling  accounts 
by  town  agents. — See  State  v.  Brat- 
tleboro,  08  Vt.  520,  35  Atl.  472. 

Liability  of  agent  in  damages. 
—A  town  agent  authorized  by  statute 
to  sell  liquors  for  certain  specified 
purposes  is  not  liable  in  damages  to 
any  person  for  refusing  under  any  cir- 
cumstances to  sell  such  liquor  to  any 
person.  Dwinnels  v.  Parsons,  98 
Mass.  470. 

Agent  not  an  officer. — In  Maine 
it  has  been  decided  that  one  who  has 


g   99]  POWER  OF  STATE  TO  REGULATE  TRAFFIC.  121 

cinal,  chemical,  and  mechanical  uses  only,  may  delegate  his  au- 
thority to  a  sub-agent,  who,  in  the  absence  of  the  former,  may 
make  such  sales  as  the  town  agent  himself  could  lawfully  have 
made  had  he  been  present,  it  being  declared  that  such  delega- 
tion of  authority  is  not  forbidden  by  the  statutes  relating  to  the 
subject  and  is  necessary  to  carry  out  the  purposes  therein  con- 
templated.78 

been  appointed  as  agent  of  a  city  to  ment.      State  v.   Weeks,   67   Me.   60. 
sell    intoxicating    liquors    is    not    an  78.  State  v.  Marley,  78  Conn.  330, 

officer  of  the  city  but  that  his  posi-  62  Atl.  85. 
tion  was  in  the  nature  of  an  employ- 


122  PARTICULAR  STATUTORY  REGULATIONS. 


CHAPTER  VI. 

PARTICULAR  STATUTORY  REGULATIONS. 

Section  100.  Excluding  liquor  traffic  from  certain  localities. 

101.  Designating  saloon  limits  in  cities  and  towns. 

102.  Consent  of  owners  of  dwelling  houses. 

103.  Excluding  traffic  within  certain  distance  of  building  or  place. 

104.  Same  subject — Colleges — schools — churches. 

105.  As  to  premises  and  use  of. 
10G.  Same  subject — as  to  entrances. 

107.  Same  subject — confining  business  to  single  room. 

108.  Prohibiting  sale  in  brothels. 

109.  Forbidding  obstruction  of  view  of  interior  of  saloon. 

110.  Same  subject — Massachusetts  laws. 

111.  What  obstructions  are  within  the  prohibition. 

112.  Prohibiting  sales  to  certain  classes  of  persons. 

113.  Prohibiting  sales  to  minors. 

114.  Prohibiting  sales  to  females. 

115.  Prohibiting  employment  of  females. 

116.  Filing  with  official  list  of  names  of  employees. 

117.  Closing  of  saloons  on  certain  days. 

118.  Closing  of   saloons  on   Sunday. 

119.  Closing  of  saloons  on  Sundays — hotels. 

120.  Designation  of  hours  for  keeping  closed. 

121.  Legislation  as  to  quantity.     • 

122.  Requiring  seller  to  make  returns  or  keep  statement. 

123.  Committing  sale  to  particular  classes  of  persons. 

124.  As  to  sales  by  druggists. 

125.  Same  subject — requiring  of  prescription. 
12fi.  Same  subject — extent  of  right  to  sell. 

127.  Returns  by  druggists. 

128.  Requiring  written  application  or  request. 

129.  As  to  sale  by  social  clubs. 

130.  Inspection  of  liquors. 

131.  As  to  adulteration  of  liquors. 

132.  Designation  of  cereals  to  be  used  in  manufacture  of  malt  liquors. 

133.  As  to  furnishing  public  record  of  internal  revenue  receipt. 


§100]  PARTICULAR  STATUTORY    REGULATIONS.  123 

Sec.  100.  Excluding  liquor  traffic  from  certain  localities. 

The  legislature  has  the  power  to  pass  local  prohibitory  Laws 
forbidding    the    manufacture    and    sale    of    intoxicating    liquors 

within  certain  designated  localities.1  And  it  is  declared  to  be 
well  settled  that  it  is  entirely  within  the  police  power  to  Limit  the 
conduct  of  the  liquor  or  other  businesses  coming  within  its  regula- 
tory scope,  or  to  exclude  such  businesses  from  specified  districts.2 
So  an  act  prohibiting  the  sale  of  malt  or  vinous  liquors  within 
two  miles  of  the  corporate  limits  of  any  municipality  has  been 
held  to  neither  violate  the  constitutional  provision  that  all  laws 
shall  be  uniform  in  their  operation  nor  that  requiring  that  every 
act  shall  embrace  but  one  subject  and  matters  properly  connected 
therewith.3  And  in  Xorth  Carolina  it  has  been  decided  that  it 
is  constitutionally  competent  for  the  legislature  to  prohibit  the 
sale  within  a  specified  locality  of  intoxicating  liquors  not  the 
manufacture  of  the  vendor,  as  such  a  provision  is  declared  not 
to  discriminate  against  citizens  of  other  counties  nor  liquors 
manufactured  elsewhere  but  to  give  to  every  person  residing  in 
or  out  of  such  county  the  right  to  sell  and  dispose  of  his  own 
products.4  And  in  the  application  of  the  doctrine  that  the  legis- 
lature has  power  to  regulate  or  prohibit  the  sale  of  intoxicating 
liquors,  it  has  been  decided  that  an  act  to  prohibit  the  sale  of 

1.  State  v.   Snow,   117   N.   C.   774,  An   act   prohibiting  the   selling   of 

23  S.  E.  322.  spirituous    liquors   in    a    certain    city 

An  order  of  the  county  court  revok-  or  town  or  within  a  certain  distance 

ing  an  order  prohibiting  the  sale  of  thereof    to    be    drunk,    or    which    is 

liquors  within  a  throe  mile  radius  is  drunk,    in    said    boundary    does    not 

self  executing,  and  is  not  suspended  violate  a  constitutional  provision  that 

by  an  appeal  therefrom  without  super-  an    act   shall    relate  to  but  one  sub- 

sedecus.     Bordwell    v.   Slate,   77   Ark.  ject  and  that  shall  be  expressed  in  its 

161,  01   S.  W.  555.  title    as    the    act    of    drinking    liquor 

s.  Grumbach    v.   Lelande    (Cal.    S.  is    declared    to    be    germane    to    sell- 

C.    1008),   08   Pac.    105S.     Per   Hen-  ing   it.      Raubold    v.    Commonwealth, 

Shaw,  J.'  21    Ky.    Law    Hop.    1125,    54    S.    W. 

3.  State  v.  Shroeder,  51   Iowa   107.  17. 
1    N.   W.   431.     Pleuler  v.   State,    11  *•  State  v.  Joyner,  81  N.  C.  534. 

Neb.  547. 


124  PARTICULAR  STATUTORY  REGULATIONS.  [§§101,102 

such  liquors  in  a  certain  county  is  not  unconstitutional  because 
it  prohibits  the  sale  of  liquor  by  a  druggist  to  a  physician  to  be 
used  by  the  latter  for  medical  purposes.5  But  where  there  is  a 
general  local  option  law  in  force  in  a  state  it  has  been  decided  a 
law  which  is  subsequently  passed  "  to  prohibit  the  sale  of 
spirituous  or  intoxicating  liquors  "  in  a  certain  specified  county 
in  which  such  local  option  law  is  already  in  force,  is  in  violation 
of  a  constitutional  provision  that  "  no  special  law  shall  be  enacted 
in  any  case  for  which  provision  has  been  made  by  an  existing 
general  law."  6 

§  101.  Designating  saloon  limits  in  cities  and  towns. 

It  is  within  the  sound  discretion  of  the  legislature  to  prescribe 
limits  in  cities  and  towns  within  which  saloons  may  be  conducted 
and  outside  of  which  saloons  may  be  prohibited  and  such  legisla- 
tion encroaches  upon  no  constitutional  right  of  the  individual, 
and  is  in  no  sense  a  prohibition  law  but  is  a  bare  regulation.7 
The  fixing  of  saloon  limits  is  a  mere  regulation  of  the  liquor 
traffic  and  not  in  any  sense  a  prohibition  thereof,  and  such  limits, 
as  a  regulation,  are  lawful  and  should  be  upheld."  8 

§  102.  Consent  of  owners  of  dwelling  houses. 

It  is  competent  for  the  legislature  to  provide  that  the  consents 
of  two-thirds  of  the  owners  of  dwelling  houses  within  a  certain 
number  of  feet  from  the  proposed  saloon  shall  be  obtained  and  to 
specify  how  the  distance  is  to  be  measured.9  And  in  this  connec- 
tion it  has  been  decided  that  that  where  the  distance  is  to  be  meas- 
ured in  a  straight  line  from  the  nearest  entrance  to  a  dwelling 

•"..  Griffin  v.  Commonwealth,  7  Ky.  citing  40  Tex.  Cr.  364,  81  S.  W.  1207; 

Law  Rep.  300.  Garonzik   v.    State,    50   Tex.   Cr.    533, 

C.  Crabb   v.   State,   88   Ga.   584,   15  100   S.   W.   374   as  distinctly   holding 

S.  E.  455.  to  this  effect. 

7.  Williams  v.  State,  52  Tex.  Cr.  »•  McDougal  v.  Malaghan,  184  N. 
371,  107  S.  W.  1121.  Y.    253,    77    N.    E.    12.      See   chapter 

8.  Ex  parte  King,   52   Tex.   Cr.   R.  XII  herein  on  Licenses. 
383.  107  S.  W.  549.     Per  Ramsey,  J., 


§  103]  PARTICULAR  STATUTORY  RE<:i  LATIONS.  L25 

house,  the  word  "  entrance  "  is  to  be  construed  as  meaning  a  means 
of  ingress  accessible  to  anybody  desiring  to  pass  from  the  street 
or  other  point  outside  the  dwelling  into  the  latter.10 

§  103.  Excluding  traffic  within  certain  distance  of  building  or 
place. 
In  many  cases  the  legislature  has  been  fit  to  prohibit  the  carry- 
ing on  of  the  liquor  traffic  within  a  certain  designated  distance 
of  institutions  of  learning,  or  buildings  devoted  to  charitable, 
religious  or  similar  purposes,  or  places  of  a  certain  character,  such 
laws  being  passed  for  the  purpose  of  protecting  the  public  morals, 
health  or  safety.  So  a  statute  prohibiting  the  manufacture  of 
spirituous  liquors  within  a  certain  distance  of  a  certain  named 
orphans'  home  without  the  written  permission  of  the  superintend- 
ent of  such  home  is  a  valid  exercise  by  the  legislature  of  its 
power  to  regulate  this  traffic.11  And  likewise  a  law  prohibiting 
the  sale  of  intoxicating  liquors  within  a  certain  distance  of  a 
home  for  disabled  volunteer  soldiers  was  held  not  to  violate  a  con- 
stitutional provision  that  "  all  laws,  of  a  general  nature,  shall 
have  a  uniform  operation  throughout  the  state."  12  And  a  statute 
making  it  unlawful  to  establish  or  maintain  a  place  in  which  in- 
toxicating liquors  are  sold,  or  kept  for  sale,  within  one  mile  of 
a  specified  soldiers'  home,  or  to  within  the  same  distance,  sell  or 
give  such  liquor  to  a  soldier,  sailor  or  marine  who  is  an  inmate 
or  employee  of  such  home  has  been  held  to  be  constitutional.13 

10.  McDougal  v.  Malaghan,  184  N.  !»•  Whitney  v.  Township  Board, 
Y.  253,  77  N.  E.  12.  71    Mich.    234,    39    N.    W.    40.      The 

11.  State  v.  Barringer,  110  N.  C.  court  said:  "The  state  has  a  night  to 
525,  14  S.  E.  781,  holding  also  that  guard  and  protect  its  poor  and  un- 
the  fact  that  a  part  of  the  inmates  fortunates  within  and  ahout  the  state 
were  removed  to  another  place  while  institutions  in  which  they  are  cared 
the  buildings  connected  with  the  home  for  and  maintained,  and  has  a  right, 
and  which  had  been  destroyed  were  under  the  police  power,  to  make  such 
being  reconstructed  did  not  suspend  reasonable  regulations  as  are  neces- 
the  operation  of  the  statute.  sary  to  thai  end.  *   *  *     No  one  will 

12.  Driggs  v.  State,  52  Ohio  St.  37,  question  the  right  of  the  state  to 
38  N.  E.  882.  enact   that    liquor   shall   not   be  sold, 


120  PARTICULAR  STATUTORY  REGULATIONS.  [§   104 

Again  the  power  of  the  legislature  in  this  respect  was  recognized 
in  an  act  which  prohibited  the  sale  of  liquors  within  a  mile  of 
the  grounds  where  an  agricultural  fair  was  held  and  during  the 
week  it  was  held,  it  being  declared  that  such  power  was  properly 
exercised  for  the  encouragement  of  agricultural  societies  and  pro- 
viding regulations  for  preserving  order  and  promoting  the  com- 
fort of  those  assembled  at  their  fairs.14  And  a  statute  prohibiting 
the  sale  of  intoxicating  liquor  within  two  miles  of  a  place  where 
an  agricultural  fair  is  being  held  is  not  unconstitutional  on  the 
ground  that  it  is  not  uniform  in  its  operation  as  it  applies  with 
uniformity  to  every  person  engaged  in  selling  such  liquors  within 
the  prescribed  distance  of  where  such  a  fair  is  being  held.15  And 
again  a  statute  forbidding  the  sale  of  such  liquors  within  four 
miles  of  the  factory  of  a  certain  named  manufacturing  company 
was  held  to  be  constitutional.16 

§  104.  Same  subject — Colleges — schools — churches. 

A  statute  prohibiting  the  sale  or  giving  away  of  liquors  within 
three  miles  of  any  academy,  college  or  university  within  the 
state,  is  held  to  be  constitutional.17  And  where  the  legislature 
passed  an  act  prohibiting  the  selling  or  giving  away  of  intoxicat- 
ing liquors  within  five  miles  of  a  certain  public  school  building 
and  made  no  exceptions  in  favor  of  the  manufacturers  of  such 
liquors  it  was  held  that  the  statute  applied  to  them  also  it  being 
declared  that  there  being  no  exception  in  the  statute  in  their 

given  away,  or  furnished  to  the  in-  tained."     Per  Morse,  J. 

mates  of  the  Soldiers'  Home,  or  upon  14.  State    v.    Stovall,    103    N.    C. 

the   premises   belonging  to   the   state.  416,  8  S.  E.  900. 

And   I   have   no   doubt   of  the   equal  15«  Heck  v.  State,  44  Ohio  St.  536, 

right  of  the  state  to  forbid  such  sal-  9.  N.  E.  305. 

or  furnishing  of  liquor  upon  ground  16.  Barnes  v.  State,  49  Ala.  342. 

though  it  be  private  property,  imme-  17.  Boyd  v.  Bryant,  35  Ark.  69,  37 

diately  abutting  or  adjoining  the  land  Am.  Rep.  6,  holding  that  such  an  act 

belonging  to  the  Home,  or  within   a  is  not  a  special  law.     See  Viefhaus  v. 

reasonable  distance  of  it.  *  *  *     The  State,    71    Ark.   419,   75    S.    W.    585; 

limit  of  one  mile   is   not  an   unreas-  Wilson  v.  State,  35  Ark.  414. 

able  one   and   the   law   must   be   sus- 


§   !05]  PARTICULAR  STATUTORY  REGULATION-.  127 

favor  the  courts  could  not  create  one.18     And  an  act  prohibiting 
such  sales  within  a  specified  distance  of  a  church  or  school  house 
is  not  void  on  the  ground  of  want  of  uniformity  in  its  operation 
because  it  discriminates  between  sales  made  in  the  country  and 
those  made  in  incorporated  towns  or  cities.19     Again  a  statute 
which  prohibits  the  sale  of  intoxicating  liquors  within  a  radius 
of  three  miles  of  any  church  or  schoolhouse  is  held  to  be  constitu- 
tional though  it  may  incidentally  operate  in  one  or  more  counties 
by  reason  of  the  number  and  location  of  the  churches  and  school- 
houses  within  the  same  to  prohibit  for  the  time  being  any  sale 
whatsoever  of  the  liquors  mentioned  within  the  boundaries  of  such 
counties.20     And  it  has  been  decided  that  a  law  prohibiting  the 
sales  of  liquor  within  two  miles  of  a  particular  church  is  valid, 
though  a  part  of  the  territory  so  specified  is  within  the  limits  of 
a  town  whose  charter  had  prior  to  such  enactment  empowered  it 
to  license  liquor  selling.21     But  where  a  statute  prohibited  the 
sale  of  such  liquors  within  a  specified  distance  of  a  certain  named 
church  in  a  county  and  there  were  two  churches  by  that  name  and 
nothing  in  the  statute  to  indicate  to  which  of  the  two  it  referred 
the  act  was  held  to  be  ambiguous  and  inoperative.22 

§  105.  As  to  premises  and  use  of. 

The  power  to  regulate  the  intoxicating  liquor  traffic  includes 
the  power  to  determine  upon  what  premises  such  liquor  shall  be 
sold  and  what  other  use  shall  be  made  of  such  premises.23  And 
where  a  saloon  keeper  is  prohibited  by  statute  from  conducting 

18.  Cotton   v.    State.   62   Ark.    585,  22.  State  v.  Partlow,  01  N.  C.  550, 

37  S.  W.  48.  49  Am.  Rep.  652. 

lf>.  But  lor  v.  State.  SO  Ca.  821.   15  -•"••  People     v.      Warden      of     City 

S.   E.   763;    See   State   v.    Frost,    103  Prison,  6  App  Div.    (N.  Y.)    520,  39 

Tenn.    684,   54    S.    W.    986;    compare  N.  Y.  Supp.  582. 

Hatcher  v.  State.  80  Tenn.  368.  An  ad   is  constitutional  which  con- 

20.  Butler  v.  State,  89  Ga.  821,  15  fines  a  liquor  dealer  to  one  place  of 
S.  E.  763.  business,  and  prohibits  him  from  sell- 

21.  State  v.  Snow,  117  N.  C.  774,  tag  in  any  other  place  without  giv- 
23  S.  E.  322.  tag   notice    and    filing   bond    as    pro- 


128 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  106 


another  business  in  connection  with  his  saloon  he  will  not  be  per- 
mitted to  evade  the  statute  by  employing  some  one  else  to  operate 
such  business.24  Again  it  has  been  held  that  the  legislature  may 
forbid  the  giving  away  of  food  to  be  eaten  on  premises  where 
liquor  is  sold.25 

§  106.  Same  subject — as  to  entrances. 

The  legislature  may  provide  as  to  the  number  of  entrances  which 
a  saloon  may  have.  Thus  it  may  provide  that  there  shall  be  only 
one  door  for  entrance  to  or  exit  from  a  saloon.26  Under  a  statute 
limiting  the  entrances  to  only  one  it  has  been  decided  that  a  second 
entrance  is  prohibited  though  it  is  in  fact  used  only  by  the  pro- 
prietor and  his  employees.27  It  is  also  a  violation  of  such  a 
statute  to  have  a  cellar  which  has  an  entrance  from  the  street  for 
storing  beer  in  connection  with  the  barroom.28  Again  a  door  for 
entrance  from  and  exit  to  a  room  or  shed  in  which  liquors  are 
stored  is  held  to  be  within  the  prohibiton  of  the  statute,29  as  is 
also  a  second  door  opening  into  an  office  through  which  one  could 
pass  from  the  main  room  to  the  street  otherwise  than  through  the 


vided  in  such  act.     People  v.  Brown, 
85  Mich.   110,  48  N.  W.   158. 

24.  Mason  v.  State,  170  Ind.  195, 
83  N.  E.  613,  holding  that  evidence 
that  a  saloon  keeper  had  leased  the 
ground  floor  of  a  building  containing 
two  rooms,  and  had  applied  for,  and 
was  granted  a  license  to  retail  liq- 
uors in  the  front  room,  no  license 
being  granted  for  the  conducting  of 
any  business  in  connection  therewith, 
that  he  rented  the  rear  room  to  his 
bar-tender  for  a  pool  and  gambling 
room,  that  chips  were  sold  bearing 
the  saloon  keeper's  name  and  redeem- 
able at  the  bar — either  in  coin  or 
trade,  that  he  was  active  in  the  con- 
duct of  the  pool  room  and  a  partici- 
pant in  the  profits,  sustains  a  convic- 


tion for  unlawfully  conducting  an- 
other business  in  connection  with  his 
saloon. 

25.  People  v.  Warden  of  City 
Prison,  6  App.  Div.  (N.  Y.)  520,  39 
N.  Y.  Supp.  582. 

26.  State  v.  Donahue,  120  Iowa 
154,  94  N.  W.  503. 

See  further  as  to  distance  of  en- 
trance from  dwelling  houses,  schools 
and  churches,  chap  XII  herein. 

2T.  State  v.  Gifford,  111  Iowa  648, 
82  N.  W.  1034. 

28.  Garrett  v.  Bishop,  113  Iowa 
23,  84  N.  W.  923. 

29.  State  v.  Bussamus,  108  Iowa 
11,  78  N.  W.  700. 

30.  Ritchie  v.  Zolesky,  98  Iowa  589, 
67  N.  W.  399. 


§§  107,108]        PARTICULAR  STATUTORY  REGULATIONS.  1l"J 

principal  entrance,39  or  a  rear  entrance  which  may  be  though  it 
is  not  in  fact  used.31 

§  107.  Same  subject — confining  business  to  single  room. 

It  is  likewise  within  the  power  of  the  legislature  to  direct  that 
the  business  shall  be  carried  on  in  a  single  room.  Under  such  a 
statute  a  large  room  divided  by  a  partition  so  as  to  make  a  small 
storeroom  off  the  barroom  in  which  articles  are  kept  to  be 
served  for  lunches  to  customers  in  the  barroom  is  not  a  single 
room  within  its  meaning.32  And  cutting  off  the  bar  of  a  saloon 
from  a  dance-hall  in  the  rear  by  means  of  a  partition  which 
does  not  reach  to  the  ceiling  has  been  held  not  to  prevent  the 
dance-hall  from  being  a  part  of  the  premises  in  which  the  busi- 
ness is  conducted  where  it  appears  that  drinks  from  the  bar  are 
served  in  the  hall.33  But  a  code  provision  that  the  selling  or  keep- 
ing for  sale  of  intoxicating  liquors  shall  be  carried  on  in  a  single 
room,  does  not  prohibit  an  opening  into  a  refrigerator  room  which 
cannot  be  used  either  as  an  exit  or  a  place  for  buying  or  drinking 
liquor.34 

§  108.  Prohibiting  sale  in  brothels. 

A  statute  which  prohibits  "  the  sale,  exchange  or  giving  away 
of  intoxicating  liquors  in  brothels  "  is  within  the  power  of  the  legis- 
lature to  enact.  Places  of  such  a  character  are  degrading  to  the 
morals  and  to  prohibit  the  sale  or  giving  away  of  liquors  therein 
is  clearly  a  measure  which  the  state  may  enact  and  which  tends 
to  protect  the  public  morals,  if  not  the  public  safety.35 

31.  State  v.  Roney,  133  Towa  41 G,  82.  wherein  it  was  declared  that  it 
110  N.  W.  C>()4.  was  not  intended  by  article  14  of  the 

32.  Garrett  v.  Bishop,  113  Iowa  23.  constitution  of  the  United  State*  for- 
84  N.   W.   923.  bidding  the  passage  by  a  state  of  any 

33.  Cunningham  v.  Forchet.  23  Tex.  law  which  shall  abridge  the  privileges 
Civ.  App.  80,  56  S.  W.  574.  or     immunities    of     citizens    of    the 

34.  State  V.  Donahue.  120  Iowa  United  States  to  limit  the  power  of 
154   94  N.  W.  503.  the  legislature  in   such  a  case  as  this 

35.  Schmeltz  v.  State,  8  Ohio  C.  C.  "or  to  interfere  in  the  slkrhest  de 


!3Q  PARTICULAR  STATUTORY  REGULATIONS.  [§   109 

§  109.  Forbidding  obstruction  of  view  of  interior  of  saloon. 

It  is  competent  for  the  legislature  to  provide  that  a  person 
authorized  to  sell  intoxicating  liquors  shall  during  the  time  when 
places  for  the  sale  of  such  liquors  are  required  by  law  to  be  closed 
remove  all  screens,  curtains,  partitions  or  any  obstacle  which  shall 
obstruct  the  public  view  of  the  bar  or  place  in  the  room  where 
the  liquors  are  sold  or  kept  for  sale.  Such  an  act  is  a  proper 
exercise  of  the  police  power  as  tending  to  enforce  the  observance 
of  the  laws  as  to  the  hours  when  traffic  shall  not  be  carried  on 
in  such  places  by  exposing  the  interior  thereof  to  the  view  of  the 
public  and  of  the  police  officials  so  that  non-compliance  may  be 
readily  seen.36  And  such  an  act  requiring  the  removal  of  screens 
neither  violates  the  fourteenth  amendment  of  the  United  States 
Constitution  nor  a  provision  of  the  state  constitution  securing 
"  the  persons,  houses,  papers  and  possessions  of  every  person 
from  unreasonable  searches  and  seizures."  37  And  an  act  pro- 
hibiting the  obstruction  by  screens  or  otherwise  of  a  bar  where 
intoxicating  liquors  are  sold  applies  not  only  to  retailers  but  also 
to  wholesale  dealers  who  give  away  liquor  by  the  glass  to  be 
drunk  on  the  premises.38      So  an  act  providing  that   the  room 

with  the  acknowledged  and  settled  "An  open  house"  which  a  li- 
right  of  the  legislatures  of  the  several  quor  dealer  by  his  bond  may  be  re- 
states to  enact  and  enforce  criminal  quired  to  keep,  is  defined  by  a  Texas 
laws  in  the  nature  of  police  regula-  statute  as  "  one  in  which  no  screen  or 
tions,  to  prevent  or  restrain  acts  other  device  is  used  or  placed,  either 
which,  in  their  judgment,  would  be  inside  or  outside  such  place  of  busi- 
subversive  of  or  injurious  to  the  ness,  for  the  purpose  of  or  that  will 
public  health,  morals  or  welfare,  for  obstruct  the  view  through  the  open 
in-tance  the  unrestricted  traffic  in  door  or  place  of  entrance  into  any  such 
intoxicating  liquors,  gunpowder,  dyna-  house  or  place  where  intoxicating  liq- 
mite  and  like  substances."  Per  quors  are  sold  in  quantities  of  less 
S,T1ith,  J.  than  a  quart."  State  v.  Andrews,  82 
36.  State  v.  Donahue,  120  Iowa  Tex.  73,  18  S.  W.  554;  2  Sayles  Civ. 
154,  94  N.  W.  50.3;  People  v.  Ken-  Stats,  art.  3226a.  §  4. 
nedy,  105  Mich.  75.  62  N.  W.  1020;  37.  Robison  v.  Haug,  71  Mich.  38, 
Robison  v.   Eaug,  71  Mich.  38,  38  N.  38  N.  W.   668. 

W.    668 ;    State    v.    Doyle,    15    R.    I.  38.  Ritchie  v.  Zolesky,  98  Iowa  589, 

325,  4  Atl.  764;  State  v.  Andrews,  82  67  N.  W.  399. 
Tex.   73,   18   S.   W.   554. 


§   11<H 


PARTICI  LAB  STATUTORY   REGULATIONS. 


131 


where  liquors  are  sold  shall  be  located  on  a  -round  floor  and  so 
arranged  that  the  interior  may  be  Been  from  the  streel  and  for- 
bidding the  obstruction  of  the  view  of  the  interior  of  the  room 
during  hours  and  days  when  the  sales  of  liquors  are  prohibited  is 
valid  and  one  to  whom  a  license  was  granted  prior  to  the  enact- 
ment of  the  statute  is  subject  to  its  operation.39  And  a  statute  is 
sufficient  which  requires  the  removal  of  "  all  obstructions  of  what- 
ever kind  "  without  attempting  to  define  the  obstructions  which 
must  be  removed.40 

§  110.  Same  subject — Massachusetts  laws. 

In  Massachusetts  laws  also  have  been  enacted  forbidding  the 
maintenance  of  screens  or  other  obstructions  but  these  laws  did 
not  limit  the  hours  when  such  screens  should  not  be  maintained 
to  those  when  the  place  was  required  to  be  closed  but  forbid  their 
maintenance,  by  the  law  of  1880  as  amended  in  1881,  in  such  a 
way  as  to  "  interfere  with  a  view  of  the  business  conducted  upon 
the  premises  "  which  words  were  followed  by  an  act  passed  in 
1882  by  the  words  "  or  with  a  view  of  the  interior  of  said  prem- 


ises 


"  41 


In  this  state  the  statute  prohibiting  the  use  of  screens 


3».  Nelson  v.  State,  17  Ind.  App. 
403,  46  N.  E.  941. 

i<>.  State  v.  Doyle,  15  R.  I.  325,  4 
Atl.  704. 

ii.  The  Massachusetts  statute  of 
1880.  c.  239,  S  2.  as  amended  by  the 
St.  of  1881,  ch.  225.  provided  that 
"no  sin  h  licensed  person  shall  place 
or  maintain,  or  authorize  or  permit  to 
be  placed  or  maintained  upon  any 
premises  used  by  him  for  the  sale  of 
spirituous  or  intoxicating  liquors  un- 
der the  provisions  of  his  license,  any 
screen,  blind,  shutter,  curtain,  parti- 
tion, or  painted,  ground  or  stained 
glass  window,  or  any  other  obstruc- 
tion, which  sua  11  interfere  with  a 
view  of  the  business  conducted  upon 
the  premises."    St.  of  1880,  c.  23!),  §  G 


provided  the  penalty  for  violating 
the  act.  The  statute  was  construed 
as  not  making  the  license  subject  to 
the  condition  that  the  person  licensed 
should  not  do  the  prohibited  act-  hut 
as  providing  that  any  licensed  person 
doing  the  acts  should  he  subject  to 
the  penalty.  A  substantive  oiTense 
was  thereby  created.  Commonwealth 
v.  Costello,  133  Mass.  192.  By  the 
statute  of  1882,  eh.  259,  S  1.  the  words 
"  interfere  with  a  view  of  the  busi- 
ness conducted  upon  the  premises" 
wire  followed  by  the  word-  "or  with 
a  view  of  the  interior  of  said  prem- 
ises,"  and  it  was  declared  that  what- 
ever mighl  have  been  the  construction 
of  the  statute  previously  the  words 
added  precluded  the  construction  that 


132 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  HI 


and  curtains  is  not  operative  merely  during  the  hours  in  which 
the  licensee  is  authorized  by  law  to  carry  on  his  business.  The 
object  of  the  statute  is  to  expose  violations  of  the  law.  So  it  can- 
not be  set  up  in  defense  to  a  violation  of  the  prohibition  that  such 
obstructions  were  used  on  a  Sunday,  when  the  licensee  was  pro- 
hibited from  keeping  his  place  open  and  that  as  he  was  not 
licensed  to  sell  on  that  day,  although  he  was  selling  liquor,  he  was 
not  acting  as  licensee,  and  that  the  prohibitions  is  limited  to  an 
act  done  by  the  licensee  while  carrying  on  the  business  under  his 
license.  Such  a  construction  would  defeat  the  intent  of  the 
statute.42 

§  111.  What  obstructions  are  within  the  prohibition. 

Where  a  statute  forbids  any  obstruction  so  as  to  prevent  the 
entire  view  of  the  room  in  which  liquors  are  sold,  the  obstruction 
of  any  material  part  of  the  room  is  a  violation  of  the  act.43  And 
that  a  bar  is  in  the  same  room  as  the  hotel  office  does  not  take  it 
out  of  the  operation  of  a  statute  requiring  that  all  obstructions  to 
the  view  from  the  street  shall  be  removed  during  the  times  at 
which  the  law  requires  places  kept  for  the  sale  of  liquor  to  be 
closed.44     So  a  curtain  which  interferes  with  a  view  of  any  part 


the  application  of  the  statute  was 
limited  to  times  when  business  was 
being  carried  on.  Commonwealth  v. 
Casey,  134  Mass.  194. 

The  words  "  no  license "  in  a  stat- 
ute prohibiting  the  obstruction  of  a 
view  of  the  interior  of  a  saloon  refer 
to  every  licensee  and  not  merely  to 
one  who  has  been  required  by  the  li 
censing  board  to  remove  a  screen 
curtain  or  other  obstruction.  Com 
monwealth  v.  Rourk,  141  Mass.  321 
6  X.  E.  383:  See  Commonwealth  v 
Brothers,  158  Mass.  200,  33  N.  E 
380. 

42.  Commonwealth  v.  Auberton 
133  Mass.  404:  See  also  Common 
wealth  v.  Casey,  134  Mass.  194. 


43.  Nelson  v.  State,  17  Ind.  App. 
403,  46  N.  E.  941. 

44.  People  v.  Carrel,  118  Mich.  79, 
76  N.  W.  118.  The  court  said:  "The 
language  of  the  statute  is  plain,  sim- 
ple and  unambiguous.  It  does  not 
make  an  exception  in  favor  of  a  bar- 
room which  is  also  used  as  an  hotel 
office."     Per  Moore,  J. 

A  statute  requiring  the  removal  of 
all  curtain,  screens,  partitions  and 
other  things  which  obstruct  the  view 
of  the  bar  from  the  street  shall  be 
removed  during  the  hours  such  places 
must  be  closed  is  violated  where  a 
hotel  barroom  is  located  back  of  the 
office  and  cloak  room,  so  that  irre- 
spective of  any   curtains   or   movable 


§  111] 


PARTICULAR  STATUTORY  I: EMULATIONS. 


1.;:; 


of  the  room  is  within  the  prohibition  of  a  statute  which  prohibits 
the  placing  of  any  obstruction  "  in  such  a  way  as  to  interfere  with 
a  view  of  the  business  conducted  upon  the  premises "  which 
statute  has  been  amended  by  the  addition  of  the  words  "  or  with 
a  view  of  the  interior  of  said  premises."  45  And  where  curtains 
are  so  placed  as  to  obstruct  a  view  of  the  interior  of  a  saloon  it  is 
immaterial  for  what  purpose  they  are  maintained.40  Again  under 
such  a  statute  it  has  been  decided  that  the  fact  that  the  windows 
opened  upon  private  grounds  does  not  render  it  incompetent  to 
prove  that  the  view  through  the  windows  or  through  one  of  them 
was  obstructed.47  In  Xew  York,  however,  it  has  been  decided  that 
under  the  statute  of  that  state  the  fact  that  there  are  blinds  on 
the  premises,  or  that  there  are  panes  of  opaque  glass,  does  not 
constitute  a  violation  of  the  act  provided  outsiders  may  have  a 
full  view  of  the  inside  of  the  premises.48  In  another  case  where 
it  appeared  that  the  front  room  was  used  as  a  cigar  store  and  the 
rear  for  the  sale  of  liquors  the  entrance  to  which  was  by  a  door 
from  the  front  room,  curtains  or  screens  covering  the  windows  of 
the  front  room  and  cutting  off  the  view  of  the  usual  entrance  to 


partitions  the  bar  can  not  be  seen 
from  the  street.  People  v.  White, 
127  Mich.  428,  86  X.  W.  092,  holding 
this  to  be  true  notwithstanding  that 
the  bar  was  maintained  in  the  same 
place  when  the  proprietor's  tax  was 
accepted  and  his  bond  approved. 

45.  Commonwealth  v.  Worcester, 
141  Mass.  58,  6  X.  E.  700. 

4C.  Commonwealth  v.  Moore,  145 
Mass.  244.  13  X.  E.  893. 

47.  Commonwealth  v.  Brothers, 
158  Mass.  200,  33  N.  E.  380.  citing 
Commonwealth  v.  McDonough,  150 
Mass.  504,  23  N.  E.  112. 

48.  Matter  of  Plass,  71  App.  Div. 
(X.  Y.)  488,  70  N.  Y.  Supp.  2,  so 
deciding  in  construing  Laws  of  1R9G, 
eh.  112,  §  31,  subd.  h,  as  amended  by 


Laws  of  1897,  ch.  312,  providing  that 
it  shall  be  unlawful  to  "  have  during 
the  hours  when  the  sale  of  liquor  is 
forbidden  any  screen  or  blinds,  or  any 
curtain  or  article  or  thing  covering 
any  part  of  any  window,  or  to  have 
in  any  window  or  door  any  opaque 
or  colored  glass  that  obstructs,  or  in 
any  way  prevents  a  person  passing 
from  having  a  full  view  from  side- 
walk, alley  or  road  in  front  of,  or 
from  the  side,  or  end  of  the  building, 
of  the  bar  and  room,  or  any  part  of 
such  l>.ir  and  room,  in  such  building 
where  liquors  are  sold  or  kept  for 
sale." 

See  also  Matter  of  Henry.  5G  App. 
Div.  (N.  Y.)  2G8,  67  N.  Y.  Supp. 
733. 


134  PARTICULAR  STATUTORY  REGULATIONS.  [§112 

the  barroom  were  held  to  be  within  the  meaning  of  the  statute.49 
And  the  maintaining  by  one  upon  his  premises  of  a  painted  glass 
window  which  interferes  with-  a  view  of  the  interior  of  the  prem- 
ises or  of  the  business  conducted  upon  such  premises  is  within  the 
prohibition  of  the  statute.50 

§  112.  Prohibiting  sales  to  certain  classes  of  persons. 

The  power  of  the  state  to  regulate  and  control  the  liquor  traffic 
includes  the  right  to  prohibit  the  sale  of  intoxicating  liquor  to 
certain  classes  of  persons.51  So  the  state  may  provide  that  liquor 
shall  not  be  sold  to  certain  relatives  of  one  who  has  given  notice 
to  the  dealer  requesting  that  he  shall  not  furnish  liquor  to  such 
persons.52  And  a  statute  which  prohibits  the  sale  of  liquor  to 
students  of  institutions  of  learning  does  not  deprive  citizens  of 
their  equal  rights,  liberty,  property,  privileges  and  immunities 
or  deny  to  persons  within  the  state  the  equal  protection  of  the 
laws  in  violation  of  provisions  in  either  the  state  or  United  States 
constitutions  forbidding  the  passage  of  laws  which  so  operate.53 
It  is  also  held  to  be  a  valid  exercise  of  the  police  power  vested  in 
the  state  to  prohibit  the  sale  of  intoxicating  liquors  to  any  Indian 
without  regard  to  the  question  whether  he  has  or  has  not  severed 


49.  Commonwealth    v.    Kane,    143  the  license  was  thereby  avoided,   al- 
Mass.  92,  8  N.  E.  880.  though   the  obstruction  existed   when 

Where  a  man  was  licensed  to  sell  the  license  was  granted, 
intoxicating    liquors    "  in    the    front  51.  Lodano   v.    State,   25    Ala.   64 ; 
room   and   rear   room"   of   a   certain  Harlan   v.   Richmond,   108   Iowa   161, 
floor  of  a  building  and  was  not  re-  78   N.   W.   809;   Kurtz  v.   People,   33 
quired  by  the  licensing  board  to  re-  Mich.  279.     Sanders  v.  State,  34  Neb. 
move  the  partition   between   the  two  872,    877,    52    N.    W.    721;    See   City 
rooms  it  was  held  that  the  partition  Council  v.  Van  Roven,  2  McC.  L.   (S. 
was  not  within  the  provision  of  the  C.)   465,  construing  an  ordinance  for- 
satute  although  it  might  obstruct  the  bidding  retailers  of  liquor  from  sell- 
view   of   the   interior   of   one   or   the  ing  to  persons  of  color, 
other  of  such  rooms  from  the  public  52.  Bankhart  v.  Freeborn,  42  Ohio 
street.    Commonwealth  v.  Barnes,  140  St.  52. 
Mass.  447,  5  N.  E.  252.  53.  Peacock    v.    Limburger.      (Tex. 

50.  Commonwealth  v.  Sawtelle,  150  Civ.  App.  1902),  67  S.  W.  518. 
Mass.  320,  23  N.  E.  54,  holding  that 


§    113]  PARTICULAR  STATUTORY  REGULATIONS.  135 

his  tribal  relations,  adopted  the  habits  of  civilization  and  become 
a  citizen  of  the  United  States.54  Again  it  has  been  declared  that 
a  statute  forbidding  tho  furnishing  of  liquor  "  by  sale,  gift  or 
otherwise  "  on  a  Sunday  to  a  person  visibly  affected  by  intoxi- 
cating drink  is  a  law  which  is  properly  within  the  range  of  a 
wise  exercise  of  the  police  power  which  ought  to  be  faithfully 
enforced  and  applied  equally  to  a  licensed  dealer  or  to  one  not 
licensed  who  gives  such  liquor  away.55  And  in  Louisiana  it  has 
been  decided  that  a  statute  is  constitutional  which  prohibits  the 
sale  of  liquor  to  white  and  colored  persons  in  the  same  building.56 

§  113.  Prohibiting  sales  to  minors. 

The  state  may  make  a  penal  offense  to  knowingly  sell  or  give 
intoxicating  liquors  to  a  minor.57  And  it  is  decided  that  where 
a  statute  prohibits  sales  to  a  minor  "  either  for  his  own  use,  the 
use  of  his  parent,  or  of  any  other  person,"  a  seller  of  such  liquors 
is  bound  at  his  peril  to  keep  within  the  condition  of  his  license 
that  no  such  sale  shall  be  made  to  a  minor;  as  the  fact  that  one 
to  whom  liquor  was  sold  had  the  appearance  of  being  of  full  age, 
or  stated  to  the  seller  that  he  was  and  that  the  sale  to  such  person 
was  made  in  good  faith  in  tho  honest  belief  that  he  was  an  adult 

54.  State  v.  Wise,  70  Minn.  99,  sales  to  intoxicated  persons;  Hedges 
72  N.  VV.  843,  holding  that  such  an  v.  Titus,  47  Ind.  145,  where  statute 
act  is  neither  arbitrary  class  legis-  forhid  sales  to  persons  in  habit  of 
lation  nor  does  it  abridge  the  privi-  becoming    intoxicated. 

leges  or  immunities  of  citizens  of  the  56.  State  v.  Falkenheiner,  123  La. 

United  States,  or  deprive  any  person ,  49  So.  214. 

of    liberty   or    property    without   due  57.  Commonwealth    v.    Tabor,    138 

process   of    law   within    the    meaning  Mass.    490;     Altenlmrg    v.    Common- 

of  the  fourteenth   amendment  of  the  wealth,  126   Pa.  St.  602,  17  Atl.  799, 

federal    constitution.       It    was    said:  4  L.  R.  A.  543;  Goldsticker  v.  Ford, 

"The  difference  in  condition  between  02    Tex.    385.      See    State    v.    Austin, 

Indians  as  a  race  and  the  white  race  114   N.   C.   855.    19   S.   E.   910,   41    L. 

constituted  a  sufficienl  basis  of  <lassi-  R.  A.  817,  25  L.  R.  A.  283;  Johnston's 

fication."    Per  Mitchell.  J.  License,  .°>7  Pa.  Super.  Ct.  438;  State 

55.  Altenburgh  v.  Commonwealth,  v.  Reynolds,  14  Mont.  383,  30  Pac. 
126  Pa.  St.  002,  17  Atl.  79!).  4  L.  R.  A.  4  1<>. 

543.      See    Commonwealth    v.    Tabor,  What     constitutes     sale     to     a 

138  Mass.  490,  where  statute   forhid      minor.— Where  a  minor  child  at  the 


136 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  113 


is  immaterial.58     So  the  sale  of  liquor  to  a  minor  being  illegal 
whether  made  to  him  as  principal  or  as  an  agent,  evidence  that  the 


request  of  her  brother-in-law,  obtains 
a  pail  of  beer,  pays  for  it  with  a 
ticket  which  he  gives  her  for  that 
purpose  and  carries  and  delivers  it  to 
him  it  has  been  held  in  New  York 
that  there  is  not  a  sale  within  the 
meaning  of  the  Penal  Code.  People 
v.  Hartstein,  49  Misc.  R.  (N.  Y.) 
336,  99  N.  Y.  Supp.  272. 

58.  Commonwealth  v.  Gould,  158 
Mass.  499,  33  N.  E.  656;  Common- 
wealth v.  Joslin,  158  Mass.  482,  33 
N.  E.  653,  21  L.  R.  A.  449n.  O'Flinn 
v.  State,  66  Miss.  7,  5  So.  390;  But 
see  Thomasson  v.  State,  15  Ind.  449, 
holding  that  where  the  sale  to  minors 
is  prohibited  by  statute  it  has  been 
decided  in  a  prosecution  for  violation 
of  the  act  that  the  defendant  may 
show  reasonable  ground  of  belief  that 
the  minor  was  an  adult. 

Intention  to  violate  is  imma- 
terial.— In  People  v.  Werner,  174 
N.  Y.  132,  66  N.  E.  667  rev'g  52  App. 
Div.  635,  66  N.  Y.  Supp.  1139,  it  is 
decided  that  the  belief  of  a  seller  of 
liquor  that  the  one  to  whom  he  sold 
it  was  not  a  minor  is  no  defense  to 
an  indictment  for  a  violation  of  the 
statute  as  to  sales  to  minors.  The 
court  said:  "The  defendant  kept  a 
hotel  or  tavern  and  was  authorized 
to  traffic  in  liquor.  He  was  convicted 
of  a  violation  of  the  act  in  that  he 
sold  and  delivered  liquor  to  a  minor 
under  the  age  of  eighteen  years,  con- 
trary to  the  provisions  of  section 
thirty  of  the  statute.  The  jury  would 
have  been  justified  in  finding  that 
the  defendant  acted  in  good  faith, 
supposing  from  what  the  boy  and  his 
father  had  told  him  that  he  was  over 
eighteen  years  of  age,  but  the  ab- 
sence of  any  criminal  intent  and  the 
circumstance  that  the  defendant  acted 
in  good   faith   would   seem  to  be  in- 


material.  The  law  on  that  subject 
seem  to  be  that  an  act  malun  pro- 
hibitum is  not  excused  by  ignorance, 
or  a  mistake  of  fact  when  a  specific 
act  is  made  by  law  indictable  irrespec- 
tive of  the  defendant's  motive  or  in- 
tent. This  belief  that  he  was  right 
in  what  he  did  based  on  a  mistake 
of  fact  is  no  defense.  Wharton  Cr. 
Law,  9th  ed.  sec.  1507.  People  v. 
Kibler,  106  N.  Y.  321,  12  N.  E.  795; 
Morris  v.  People,  3  Denio  381,  Gard- 
ner v.  People,  62  N.  Y.  299.  The  gen- 
eral rule  that  the  criminal  intention 
is  the  essence  of  the  crime  does  not 
apply  to  such  prohibited  acts;  but 
while  that  is  so,  such  statute  ought 
to  be  strictly  construed  and  the  peo- 
ple required  to  give  strict  proof  of 
the  commission  of  the  offense."  Per 
O'Brien,  J. 

Evidence  by  defendant  to  im- 
peach testimony  as  to  boy's  age. 
—In  People  v.  Werner,  174  N.  Y. 
132,  66  N.  E.  667,  rev'g  52  App.  Div. 
635,  66  N.  Y.  Supp.  1139,  it  is  de- 
cided that  where  the  only  evidence  to 
support  the  indictment  so  far  as  it 
was  based  upon  the  boy's  age,  is  the 
testimony  of  his  father,  the  defend- 
ant may  for  the  purpose  of  contra- 
dicting or  impeaching  him,  show  on 
his  cross-examination  and  by  the  tes- 
timony of  other  witnesses  that  he  had 
stated  to  him  that  his  son  was  over 
eighteen  years  of  age,  and  the  ex- 
clusion of  such  testimony  is  reversible 
error. 

In  Pennsylvania  it  has  been  decided 
that  section  17  of  the  Act  of  May  13, 
1887,  P.  L.  108  which  makes  it  un- 
lawful by  sale,  gift  or  otherwise  to 
furnish  any  spirituous,  vinous,  malt 
or  brewed  liquors  to  a  minor  was  not 
repealed  nor  was  the  burden  of  prov- 
ing that  the  defendant  knew,  or  was 


§  114]  PARTICULAR  STATUTORY  REGULATIONS.  137 

purchase  was  for  his  mother  who  was  sick  is  immaterial  and 
rightly  excluded.59 

§  114.  Prohibiting  sales  to  females. 

In  the  exercise  of  the  power  existing  in  the  state  to  control  the 
sale  of  liquor  it  has  been  determined  that  the  legislature  may 
prohibit  the  sale  of  intoxicating  liquors  to  females.60  And  an  act 
prohibiting  sales  of  such  liquors  to  women  does  not  deprive  the 
seller  of  his  property  or  liberty  without  due  process  of  law  in 
violation  of  either  the  provision  in  the  Federal  constitution  or 
in  a  state  constitution  to  that  effect.01  And  a  statute  making  it 
an  offense  for  proprietors  of  places  where  liquor  is  kept  for  sale 
at  retail,  to  permit  a  female  under  the  age  of  twenty-one  years 
to  remain  in  or  about  the  place  is  not  special  legislation  because 
it  excepts  from  its  operation  any  open  and  public  restaurant  or 
dining-room,  as  this  is  a  classification  that  the  state  in  the  exer- 
cise of  its  police  powers  can  lawfully  make.62  Nor  is  such  a  stat- 
ute invalid  because  of  the  fact  that  a  female  attains  her  majority 
at  the  age  of  eighteen  as  the  right  to  enter  and  remain  in  a  saloon 
is  not  one  of  the  equal  privileges  granted  to  every  citizezn.63  jSTor 
is  such  a  statute  void  as  unreasonable,  because  making  no  distinc- 
tion dependent  on  the  purpose  of  the  visit.64  And  though  a  statute 
may  be  construed  as  conferring  upon  women  the  right  equally 
with  men  to  frequent  saloons  yet  such  right  will  be  regarded  as 
taken  away  by  the  act  of  the  legislature  in  subsequently  granting 

negligent    in    not    ascertaining,    that  Colo.  488,  69  Pac.  500,  63  L.  P.  A. 

the  persons  to  whom  he  sold  or  furn-  61.     See  State  v.  Reynolds,  14  Mont. 

ished  liquors  were  minors  cast  upon  383,   36   Pac.   440. 

the  petitioner  by  the  Act  of  May  25,  61.  Cronin  v.  Adams,  192  U.  S.  108, 

1897,   P.   L.   93.     Johnston's  License,  24  Sup.  Ct.  219.  48  L.  Ed.  365. 

37  Pa.  Super.  Ct.  438.  62.  State  v.   Baker,   50  Oreg.   381, 

5J>.  Commonwealth    v.    Gould,    158  92   Pac.   1070. 

Mass.  499,  33  N.  E.  656.  63.  State   v.   Baker,   50  Oreg.   381, 

60.  Cronin  v.  Adams,  192  U.  S.  108,  92  Pac.  1076. 

24  Sup.  Ct.  219,  48  L.  Ed.  365  aff'g  64.  State  v.   Baker,  50  Oreg.   381, 

judgment    in    Adams    v.    Cronin,    29  92  Pac.   1076. 


138  PARTICULAR  STATUTORY  REGULATIONS.  [§  H5 

a  charter  to  a  city  by  which  authority  is  conferred  upon  it  to  de- 
prive women  of  such  right.65  In  this  connection  it  is  decided  that 
a  room  used  by  saloon  keepers  in  connection  with  their  saloon 
business  is  part  of  the  saloon  within  a  statute  making  it  an 
offense  to  permit  a  female  under  the  age  of  twenty-one  to  remain 
in  or  about  a  saloon.06  In  Colorado  it  is  decided  that  to  make  a 
room  a  wine  room  within  the  provisions  of  the  statute  prohibiting 
the  keeping  of  a  wine  room  into  which  females  are  permitted  to 
enter  and  be  supplied  with  liquor  it  must  be  kept  in  connection 
with  or  as  a  part  of  the  saloon  it  being  declared  that  the  legislature 
evidently  intended  to  designate  a  place  which  patrons  might  use 
for  private  tippling  purposes  instead  of  drinking  at  the  bar  and 
in  which  a  portion  of  the  business  of  the  saloon  should  be  carried 
on.67 

§  115.  Prohibiting  employment  of  females. 

It  is  a  valid  exercise  of  the  police  power  by  the  legislature  to 
either  forbid  the  sale  of  intoxicating  liquors  in  a  place  where 
females  or  minors  are  employed  or  to  prohibit  the  granting  of  a 
license  for  such  a  place,  as  an  enactment  of  this  nature  is  obvi- 
ously for  the  benefit  and  protection  of  public  morals.68  So  the 
legislature,  or  a  municipality  with  the  requisite  authority  to  so 
act,  may  provide  that  persons  engaged  in  the  sale  of  intoxicating 
liquors  shall   not  employ  the   services   of  women  in   connection 

65.  Adams  v.  Cronin,  29  Colo.  488,  the  room  charged  to  he  a  wine  room 
69  Pae.  590,  63  L.  R.  A.  61.  was    a    resturant;    that   there   was   a 

66.  State  v.  Baker,  50  Oreg.  381,  92  range  in  the  back  of  the  room  for 
Pae.  1076.  the  purpose  of  cooking,  and  that  ed- 

67.  Ellis  v.  People,  38  Colo.  516,  ibles  were  displayed;  and  that  the 
88  Pae.  461,  citing  Walker  v.  People,  place  was  resorted  to  for  the  princi- 
5  Colo.  App.  40,  37  Pae.  29,  and  hold-  pal  purpose  of  food  rather  than  drink, 
ing  that  on  the  trial  of  a  saloon  68.  Cronin  v.  Adams,  192  U.  S. 
keeper  for  keeping  a  wine  room  in  108,  24  Sup.  Ct.  219,  48  L.  Ed.  3C5. 
connection  with  a  saloon  it  was  re-  State  v.  Reynolds,  14  Mont.  383,  36 
versible  error  on  the  part  of  the  trial  Pae.  449,  sustaining  a  statute  so  pro- 
court  to  refuse  evidence  offered  by  viding  as  to  the  employment  of  wo- 
the   defendant  tending  to   show  that  men  or  minors. 


§8    ll6f117]        PARTICULAR  STATUTORY  REGULATIONS.  139 

therewith;  such  a  regulation  not  being  a  denial  to  women  of  the 
equal  protection  of  the  laws  assured  by  said  amendment.69  And 
a  constitutional  provison  that  "  no  person  shall  on  account  of  sex 
be  disqualified  from  entering  upon  or  pursuing  any  lawful  busi- 
ness, vocation  or  profession"  is  not  a  limitation  upon  the  power 
of  the  state  to  regulate  the  retail  trade  in  intoxicating  liquors 
and  therefore  a  statute  or  an  ordinance,  where  a  municipality  has 
the  authority  to  act,  prohibiting  the  sale  of  such  liquors  in  any 
place  where  females  are  permitted  to  wait  or  attend  in  any  man- 
ner on  any  person  is  a  valid  regulation.70 

§  116.  Filing  with  official  list  of  names  of  employees. 

The  legislature  may  by  statute  provide  that  all  sellers  of  intoxi- 
cating liquors  shall  file  with  a  designated  official  a  list  of  names  of 
all  persons  employed  about  the  place  of  business.  Such  a  pro- 
vision has  been  construed  as  extending  not  only  to  the  regular  bar 
keepers  but  to  any  person  employed  about  such  place  for  any 
purpose.71  The  court  said  in  this  case:  "  The  object  of  the  statute 
evidently  is  to  prevent  the  employment  of  persons  about  the  place 
and  especially  behind  the  bar,  who  may  be  in  a  situation  to  handle 
liquor,  whether  they  do  so  with  or  without  authority.  In  other 
words  the  authority  which  may  be  given  to  such  employee  by  the 
person  conducting  the  place  is  not  the  test  for  determining  whether 
their  names  should  be  listed  with  the  county  auditor."  '-' 

§  117.  Closing  of  saloons  on  certain  days. 

A  frequent  regulation  by  statute  of  the  liquor  traffic  is  a  pro- 

60.  Hoboken  v.  Goodman,  68  N.  J.  hours   and    wash   up   the  bottles   and 

L.  217,  51   Atl.  1092.  glasses   back   of   the   bar,   that    these 

70.  Ex  parte  Hayes,  98  Cal.  555,  persons  'lid  Lr<>  behind  the  bar  in  this 
33  Pac.  337,  20  L.  R.  A.  701.  employment    and    that    their    names 

71.  Pumphrey  v.  Anderson,  flown  were  not  listed  with  the  county  audi- 
1909),  119  N.  W.  617.  It  appeared  tor,  hut  that  these  persons  were  not 
in  this  case  that  the  seller  employed  authorized  <<»  and  did  not  sell  or 
porters  and  other  workmen  tempo-  handle  liquor  behind  the  bar  or  other- 
rarily,  from  time  to  time,  to  clean  up  wise. 

his  place  of  business  during  busii  "-•  Per  McClain,  .T. 


140 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  117 


vision  naming  certain  days  upon  which  saloons  are  required  to  be 
closed;  such  a  statute  being  a  proper  exercise  by  the  state  of  its 
police  power  for  the  protection  of  the  public  morals  or  safety. 
Thus  in  many  states  it  has  been  deemed  advisable  to  require  the 
closing  of  saloons  on  election  days  or  during  certain  specified 
hours  on  such  days,  such  a  measure  being  considered  advisable  as 
tending  to  preserve  peace  and  order  at  the  polls  and  for  the  public 
safety.73  In  this  connection  it  has  been  decided  that  the  words 
"  election  day  "  as  used  in  a  statute  prohibiting  the  sale  of  intoxi- 
cating liquor  on  such  days,  means  a  whole  day  of  twenty-four 
hours.74  Again  in  some  states  statutes  have  been  passed  provid- 
ing that  saloons  shall  be  closed  on  legal  holidays.75  So  where 
"  labor  day  "  is  by  statute  made  a  legal  holiday  and  by  another 


73.  State  v.  Hirsch,  125  Ind.  207, 
24  X.  E.  1062,  9  L.  R.  A.  170. 
Qualter  v.  State,  120  Ind.  92,  22  N.  E. 
100.  Commonwealth  v.  Murphy,  95 
Ky.  38,  23  S.  W.  655;  Sanders  v. 
State,  34  Neb.  872,  52  N.  W.  721. 

"  That  drinking  intoxicating  liq- 
uors tends  to  inflame  to  riot  and  acts 
of  violence  men  who  are  congregated 
under  the  excitement  of  an  election 
is  an  obvious  reason  for  endeavoring 
to  suppress  drinking,  and  for  prohib- 
iting sales  for  immediate  consump- 
tion, and  for  closing  places  of  sale 
for  immediate  consumption,  on  an 
election  day."  State  v.  Orth,  38 
Minn.  150,  36  N.  W.  103.  Per  Gil- 
fillan,  C.  J. 

74.  Schuck  v.  State,  50  Ohio  St. 
493,  34  N.  E.  663;  Kane  v.  Common- 
wealth, 89  Pa.  St.  522;  Jones  v. 
State,  32  Tex.  Cr.  533,  25  S.  W.  124 ; 
Lawrence  v.  State,  7  Tex.  App.  192; 
Haines  v.  State,  7  Tex.  App.  1.  Com- 
pare Wooster  v.  State,  6  Baxt. 
(Tenn.)    533. 

75.  State  v.  Shelton,  38  Ind.  App. 
80,  77  N.  E.  1052;  Commonwealth  v. 
Francis,  152  Mass.  508,  25  N.  E.  836; 


Moore  v.  Kelley,  136  Mich.  139,  98 
N.  W.  989. 

The  word  "  holiday "  means  a 
consecrated  day;  a  day  of  cessation 
from  ordinary  labor.  State  v.  Shel- 
ton, 38  Ind.  App.  80,  77  N.  E.  1052. 

Christmas  has  been  held  to  be  a 
legal  holiday  in  Michigan  within  the 
meaning  of  an  act  directing  that  sa- 
loons shall  be  closed  on  legal  holidays, 
Sunday  and  election  days.  Reithmil- 
ler  v.  People,  44  Mich.  280. 

Holidays  for  commercial  pa- 
per.— In  Indiana  it  has  been  decided 
that  a  day  which  is  simply  a  legal 
holiday  under  the  statute  in  relation 
to  commercial  paper  is  not  within  the 
meaning  of  the  intoxicating  liquor 
statute.  State  v.  Atkinson,  139  Ind. 
426,  39  N.  E.  51,  holding  the  30th 
of  May  not  to  be  a  legal  holiday. 
See  also  State  v.  Shelton,  38  Ind. 
App.  80,  77  N.  E.  1052;  Compare  as 
to  principle,  People  v.  Ackerman,  80 
Mich.  588,  45  N.  W.  367. 

And  the  4th  of  July  has  been  held 
not  to  be  a  legal  holiday  within  the 
meaning  of  such  a  statute.  Ruge  V. 
State,  62  Ind.  388. 


§   118]  PARTICULAR  STATUTORY  REGULATIONS.  141 

statute  the  sale  of  intoxicating  liquors  on  any  legal  holiday  is 
prohibited,  the  sale  of  liquors  on  labor  day  comes  within  the  pro- 
hibition of  the  statute.76  So  in  Michigan  under  a  statute  desig- 
nating certain  days  and  declaring  that  such  days  and  "  any  other 
day  appointed  or  recommended  by  the  governor  of  this  state  or 
the  President  of  the  Onited  States  as  a  day  of  fasting  and  prayer 
or  thanksgiving  "  shall  as  to  commercial  paper  and  the  holding 
of  courts  be  considered  as  the  first  day  of  the  week  commonly 
called  Sunday  it  was  held  that  the  30th  day  of  April  known  as 
Centennial  Day  and  set  apart  by  the  governor  as  a  day  of  thanks- 
giving and  prayer  was  a  legal  holiday,  and  that  a  sale  of  liquor 
on  such  day  was  prohibited.77  And  where  the  general  law  re- 
quired all  saloons  to  be  kept  closed  on  all  legal  holidays  it  was 
decided  a  subsequent  act  authorizing  the  common  council  of  a 
certain  city  to  enact  ordinances  "  to  restrain,  license  and  regulate 
saloons,  and  to  regulate  and  prescribe  the  location  thereof  "  was 
to  be  construed  as  not  abrogating  the  general  law  but  as  author- 
izing the  city  to  regulate  saloons  in  a  manner  not  inconsistent 
therewith  and  that  an  ordinance  permitting  saloons  to  remain 
open  an  July  4th  was  invalid.78 

§  118.  Closing  of  saloons  on  Sunday. 

A  statute  directing  that  all  saloons  and  other  places  where  the 
liquor  traffic  is  carried  on  shall  be  closed  during  certain  hours  on 
Sunday  or  during  the  entire  day  is  a  proper  exercise  of  the  police 
power.79  And  it  is  said  to  be  settled  law  that  it  is  within  the 
legitimate  exercise  of  the  police  power  for  the  legislature  to  pro- 

70.  State  r.  Shelton,  38  Ind.  App.  Kentucky. — Commonwealth    v.    Mc- 

80,  77  N.  E.  1052.  Cann,  123  Ky.  .247.  04  S.  W.  645. 

77.  People  v.  Ackerman,  SO  Mich.  Missouri. — State  v.  Ambs,  20  Mo. 
588,  45  N.  W.  367.  214. 

78.  Moore  v.  Kelley,  136  Mich.  139,  Nebraska. — Sanders  v.  State,  34 
98  N.  \Y.  989.  Neb.  S72.  52  X.  W.  721. 

70.  Flnrdia. — Crabb    v.    State,    47  Pennsylvania. — Sifted   v.    Common- 

Fla.  24,  30  So.  169.  wealth,  104  Pa.  St.  170. 

Indiana. — Morris  v.   State.   47   Tnd.  Tennessee. — State      v.      Barker,      4 

503;  Parker  v.  State.  27   I  ml.  393.  Sneed    (Term.)    554. 


142  PARTICULAR  STATUTORY  REGULATIONS.  [§118 

hibit  the  sale  of  vinous,  spirituous  or  malt  liquors  on  Sunday  and 
keeping  open  places  where  such  liquors  are  sold  and  that  whether 
the  business  is  engaged  in  as  a  livelihood  or  for  profit,  or  whether 
sales  are  made  public  or  private,  or  not  at  all,  is  of  no  consequence 
if  the  places  are  kept  open  for  such  sales.80  So  it  is  held  that  a 
druggist  who  not  only  sells  liquors  upon  the  prescription  of  phys- 
icians but  also  has  a  retail  liquor  dealer's  license  and  retails  liquors 
and  his  drugs  and  liquors  are  kept  in  the  same  room  so  that  the 
drug  room  cannot  be  kept  open  without  keeping  the  barroom  open 
must  close  his  place  on  Sunday  where  the  statute  prohibits  the 
keeping  open  on  Sunday  of  any  place  where  intoxicating  liquors 
are  sold.81  A  statute  however  providing  that  it  shall  be  unlawful 
for  any  maker,  brewer,  or  distiller  of  beer  or  other  intoxicating 
liquors  "  or  other  person  or  corporation  or  the  agent  or  servant 
of  any  such  maker,  brewer  or  distiller  "  to  sell  or  deliver  any  beer 
or  other  intoxicating  liquors  on  Sunday  is  held  not  to  operate  as  a 
general  prohibition  against  all  persons  but  only  against  makers, 
brewers,  distillers  and  others  of  that  class  and  not  to  apply  to 
duly  licensed  hotels  having  a  barroom  license  under  a  previously 
enacted  general  law  or  to  repeal  an  act  allowing  hotels  to  sell 
liquors  to  bona  fide  guests  at  their  meals  or  in  their  rooms.82 

The  term  "  closed  "  as  used  in  a  offense.  Thus  is  one  is  arrested  on 
statute  providing  that  all  saloons  and  Sunday  morning  for  keeping  his  bar- 
all  places  of  public  resort  where  in-  room  open  and  after  giving  bail,  he 
toxicating  liquors  are  sold,  shall  be  returns  and  opens  it  again  on  the 
closed  on  Sundays  means  that  the  same  day  he  will  be  regarded  as 
sales  shall  be  entirely  stopped  and  having  committed  two  offenses  for 
the  traffic  shut  out  effectually,  so  that  each  of  which  he  may  be  arrested  and 
drinking  and  the  conveniences  for  tried.  Commonwealth  v.  Mc  Cann, 
drinking,  shall  be  no  longer  accessible,  123  Ky.  247,  94  S.  W.  645. 

!   1     that    those    who     frequent    the  so-  Beau  voir    Club    v.    State,    148 

places  for  that  purpose  shall  be  dis-  Ala.  643,  42  So.   1040.     Per  Denson, 

persfd.      Kurtz    v.    People,    33    Mich.  J. 

279.  «i.  McNeill  v.  State,  92  Tenn.  719, 

Keeping  open  not  a  continnons  23  S.   W.   52. 

offense. — The  keeping  of   a   barroom  s2.  District  of  Columbia  v.  Reuter, 

open  on   Sunday  in  violation  of  stat-  15  App.  D.  C.  237. 
ute    is   not   necessarily   a   continuous 


§§   119  1201         PARTICULAR  STATUTORY  REG!  LATIONS.  143 

§  119.  Closing  of  saloons  on  Sundays — hotels. 

In  New  York  it  is  decided  that  a  Btatute  prokibiting  any  tavern 
or  hotel  keeper  from  selling  or  giving  away  intoxicating  liquors 
as  a  beverage  does  not  prohibil  Mich  a  person  from  providing  such 
liquors  to  guests  to  be  taken  with  their  meals.88  But  the  pro- 
visions of  a  liquor  tax  law  authorizing  the  keeper  of  a  hotel  to 
sell  liquor  to  his  guests  with  their  meals  are  violated  by  him  when 
he  on  Sunday  sells  casual  callers  at  the  hotel  whisky  to  be  drunk 
there,  and  only  incidentally  has  sandwiches  served  with  the 
drinks.84  And  though  a  hotel  keeper  may  under  the  license 
granted  to  him  serve  liquors  to  his  guests  on  Sunday  yet  this 
right  to  so  serve  them  may  be  taken  away  by  a  subsequent  statute 
and  it  is  said  that  when  a  legislative  enactment  is  declared 
by  the  supreme  authority  of  the  state  to  limit  the  liquor  traffic, 
under  a  license,  to  the  six  secular  days  of  the  week,  those  citizens 
to  whom  the  law  has  intrusted  licenses  for  public  reasons,  ought 
to  yield  a  cheerful  obedience.85 

§  120.  Designation  of  hours  for  keeping  closed. 

The  legislature  may  also  in  the  exercise  of  the  police  power 
fix  the  hour  at  which  a  saloon  shall  close  its  doors  each  night  and 

83.  Matter  of  Breslin,  45  Hun  liquor  the  secondary  thing.  Regard- 
(N.  Y.)   210.  ing  the  callers  as  guests  and  the  sand- 

84.  Matter  of  Cullinan,  41  Misc.  R.  wich  as  a  meal  for  the  purpose  of 
(N.  Y.)  3,  83  N.  Y.  Supp.  581.  The  this  discussion  only,  the  occurrence 
COUii  said:  "The  serving  of  the  sand-  was  nothing  less  than  the  selling  of 
wichea  was  a  mere  subterfuge.  It  meals  to  the  guests  with  their  liquor, 
was  incidental  to  the  sale  of  whisky.  a  palpable  evasion  of  the  letter  and 
The  men  ordered  whisky  and  said  spirit  of  the  law  and  a  practical 
nothing  in  the  first  instance  about  a  transposition  of  its  express  terms  to 
meal  or  even  a  sandwich.  The  latter  accomplish  such  evasion,  the  sale  of 
was  urged  upon  them  by  the  waiter  liquor  being  thus  made  the  primary 
after  consultation  with  the  respond-  thing  and  the  sale  of  the  sandwich 
ent.  The  section  above  cited  (subd.  being  secondary  and  incidental 
k),    provides    that    'the    keeper    of    a  thereto."      Per  (Jarretson.   J. 

hotel    may    sell    liquor    to    the    guests  sr'-  Commonwealth    v.    Naylor,    34 

of  such  hotel  *  *  *  with  their  meals.       Pa.   St.  86,  88. 
the  meal  being  the  primary  and  the 


144  PARTICULAR  STATUTORY  REGULATIONS.  [§   121 

at  which  it  may  reopen  them  in  the  morning  and  forbid  the  sale 
of  liquor  between  such  hours.86  So  a  statute  prohibiting  the  sale 
of  intoxicating  liquors  between  the  hours  of  eleven  at  night  and 
five  the  next  morning  has  been  held  to  be  constitutional  and  to 
apply  to  licensed  retailers  of  such  liquors.87  And  it  is  within  the 
power  of  the  legislature  to  require  a  saloon  keeper  to  securely  close 
his  saloon  and  permit  no  one  to  enter  during  the  time  when  the 
sale  of  liquors  is  forbidden.88  And  one  who  sells  intoxicating 
liquors  under  authority  of  a  license  from  the  United  States  is  sub- 
ject to  the  provisions  of  a  state  statute  providing  that  during  the 
hours  a  saloon  is  required  to  keep  closed  the  room  shall  be  so 
arranged  as  to  afford  a  view  of  the  interior  from  the  street  or 
highway.89 

§  121.  Legislation  as  to  quantity. 

The  state  in  the  exercise  of  its  power  to  control  and  regulate 
the  liquor  traffic,  may  pass  statutes  in  regard  to  the  quantity  in 
which  liquor  may  be  sold,  prohibiting  its  sales  in  less  than  a  cer- 
tain quantity  or  making  the  license  fee  different  where  liquor  is 
sold  at  retail  in  less  than  a  certain  quantity  to  be  drank  upon  the 
premises  than  it  is  where  it  is  sold  in  excess  of  that  quantity  and 
not  to  be  drank  upon  the  premises.90     The  legislature  may  also 

86.  State  v.  Hellwan,  56  Conn.  190,  State  v.  Benz,  41  Minn.  30,  42  N.  W. 
14  Atl.  806;  Commonwealth  v.  Kelley,       547. 

177  Mass.  221,  58  X.  E.  691.  New   Jersey. — Fagan    v.    State,    47 

87.  Hedderich    v.    State,    101    Ind.       X.  J.  L.  175. 

564,  51  Am.  Rep.  768.  New  York.— People  v.  Vosburgh,  76 

88.  State  v.  Gerhardt,  145  Ind.  439,  Hun.  562,  28  N.  Y.  Supp.  208 ;  People 
44  X.  E.  469,  33  L.  R.  A.  313.  v.  Quant,  12  How.  Pr.  83. 

8».  State   v.   Mathis,   18   Ind.   App.  Pennsylvania. — Commonwealth       V. 

608,  48  X.  E.  645.  Watson,  2  Pa.  Dist.  R.  526. 

'■><>•  Alabama. — Lodano  v.  State,  25  South    Carolina. — State    v.    Turner, 

Ala.  04.  18  S.  C.   103. 

Illinois. — Tipton    v.    State,    156   111.  Tennessee.— Philips      v.      State,      2 

241.  4u  \.  K.  838.  Yerg.  458. 

Maine. — State  v.  Davis,  23  Me.  403.  In    Kentucky    it   has   been    decided 

Minnesota. — State  v.  Brackett,  41  that  under  the  police  power  to  pro- 
Minn.    33,   42   X.   W.   548;    following  hibit  the  sale  of  liquor  by  retail  the 


§  121] 


PARTICULAR  STATUTORY  REGULATIONS. 


]  J.", 


prohibit  the  sale  of  liquor  in  any  quantity  whatever  to  be  drank 
upon  the  premises.91  And  in  "  an  act  to  regulate  the  sale  "  of 
intoxicating  liquors  the  legislature  may  forbid  the  sale  of  such 
liquors  by  the  small  measure,  as  such  a  provision  is  in  the  nature 
of  a  regulation  and  not  prohibition  and  does  not  violate  a  constitu- 
tional provision  that  every  law  shall  embrace  but  one  subject  and 
that  that  subject  shall  be  expressed  in  the  title.92  So  foreign 
liquor  after  it  has  passed  beyond  the  hands  of  the  importer,  or 
the  original  package  is  broken  for  use  or  sale,  so  that  it  ceases  to 
be  foreign  commerce,  is  not  exempted  from  the  operation  of  a 
statute  prohibiting  the  sale  of  intoxicating  liquors  in  less  than  a 
certain  quantity  by  the  fact  that  the  statute  provides  that  it  shall 


legislature  may,  in  its  wisdom,  fix 
ten  gallons  as  the  minimum  quantity 
that  can  be  lawfully  sold  at  one  time. 
Stickrod  v.  Commonwealth,  86  Ky. 
285,  5  S.  W.  580.  The  court  said: 
"  Under  the  police  power  to  prohibit 
the  sale  by  retail  it  seems  to  us  the 
legislature  may,  in  its  wisdom,  fix  ten 
gallons  as  the  minimum  quantity 
that  can  be  lawfully  sold  at  one  time, 
and  the  courts  cannot  call  in  question 
such  exercise  of  power,  for  with  the 
policy  or  expediency  of  such  legisla- 
tion they  have  nothing  to  do.  The 
theory  of  prohibitory  liquor  laws  is, 
that  by  the  purchase  as  well  as  sale 
of  liquor  by  retail,  in  the  language 
of  the  preamble  to  an  act  of  the  legis- 
lature passed  in  1S20.  '  industry  is 
checked,  purses  are  drained,  consti- 
tutions  are  destroyed,  families  are 
distressed,  and  the  people  are  de- 
moralized.'  It  cannot,  therefore,  be 
said  that  a  question  of  privil 
arises  when  a  statute  is  passed  hav- 
ing for  its  object  the  prevention  of 
such   calamitous   consequences."     Per 

Lewis,    J. 

In  Texas  it  has  been   declared  that 
the   laws   in   force   there  have   recog- 


nized a  bond  and  license  to  sell  in- 
toxicating liquors  in  quantities  less 
than  a  quart  as  authorization  to  per- 
mit the  liquors  to  be  drank  upon  the 
premises  where  sold  and  that  the  pro- 
hibition against  permitting  them  to 
be  drunk  where  sold  applied  only  to 
sales  of  a  quart  or  more.  State  v. 
Drake,  86  Tex.  329,  24  S.  W.  790. 

A  statute  forbidding  the  sale  of 
liquor  in  quantities  less  than  three 
gallons  is  held  to  be  superseded  by  a 
later  statute  forbidding  the  sale  in 
any  quantity  the  court  declaring  that: 
"Since  the  legislature  has  forbid  the 
sale  of  spirituous  liquors  in  any 
quantity  without  a  license,  the  previ- 
ous law  forbidding  the  sale  in  cer- 
tain quantities,  has  unquestionably 
been  superseded  and  rendered  nuga- 
tory, as  the  general  proposition  must 
necessarily  embrace  the  particular  or 
-I  ecial  one."  State  v.  Turner.  18 
S.  C.  103,  106.  Per  Mr.  Justice 
Mclver. 

*>!»  Sanderlin  v.  State.  2  Humph. 
(Tenn.)    315. 

92.  Paul  v.  Gloucester  County.  50 
X.  J.  L.  585,  15  Atl.  272.  1  L.  R.  A. 
86n. 


146 


PARTICULAR  STATUTORY  REGULATIONS.         [§§   122,123 


not  apply  to  liquor,  the  right  to  sell  which  in  the  state  is  given  by 
any  law  or  treaty  of  the  United  States.93 

§  122.  Requiring  seller  to  make  returns  or  keep  statement. 

The  legislature  may  require  persons  who  hold  a  permit  to 
manufacture  or  sell  intoxicating  liquors  to  make  returns  at  certain 
dates  to  designated  officials.94  The  keeping  by  a  manufacturer 
of  a  tabular  statement  of  all  sales  may  also  be  required  containing 
the  date  of  sale  and  name  of  the  purchaser.  Under  such  a  statute 
it  has  been  decided  that  there  is  a  sufficient  compliance  therewith 
where,  although  no  tabular  statement  is  kept,  his  books,  kept  in 
the  usual  course  of  business  contain  the  same  entries  as  are  re- 
quired in  the  statement.95 

§  123.  Committing  sale  to  particular  classes  of  persons. 

The  state  may  by  virtue  of  its  police  power  commit  the  sale 
of  liquor  to  a  particular  class  of  persons  and  therefore  a  statute 
which  restricts  the  privilege  of  selling  liquor  for  medical  and 
other  purposes  to  druggists  is  not  unconstitutional  on  the  ground 
of  its  being  class  legislation.96     So  it  is  said  in  a  recent  case  that 


93.  People  v.  Quant,  12  How.  Pr. 
(N.  Y.)  8.3.  The  court  said:  "The 
right  to  sell  is  only  claimed  as  an  in- 
cident to  the  right  to  import;  and 
the  United  States  Supreme  Court 
held,  that  as  the  right  to  regulate 
commerce  with  foreign  nations  is 
vastly  solely  in  congress,  and  as  un- 
der that  right  congress  admits  the 
importation  of  foreign  liquor  in  pack- 
ages, that  while  such  importation  con- 
tinues in  the  hands  of  the  importer, 
in  the  form  and  shape  it  was  intro- 
duced, it  continues  a  part  of  the  for- 
eign commerce  of  the  country ;  and 
that  the  authority  to  import  neces- 
sarily carried  with  it  the  right  to  sell, 
in  the  form  and  shape  in  which  it 
was  imported;  but  when  the  original 


package  was  broken  up  for  use  or  re- 
tail by  the  importer,  or  had  passed 
from  his  hands  into  the  hands  of  a 
purchaser,  it  ceased  to  be  an  import, 
and  became  subject  to  the  laws  of  the 
state.  This  is  all  the  law,  or  treaty 
of  the  United  States  on  the  subject." 
Per   James,   J. 

94.  State  v.  McEntee,  68  Iowa  381, 
27  N.  W.  265. 

95.  Barnard  v.  Houghton's  Estate, 
34  Vt.  264. 

96.  Intoxicating  Liquor  Cases,  25 
Kan.  751,  37  Am.  Rep.  284.  The 
court  said:  "It  will  not  be  doubted 
that  the  police  power  of  the  state  is 
broad  enough  and  strong  enough  to 
uphold  any  reasonable  restrictions 
and    limitations   on   the   keeping,   use 


§  124] 


PARTH  ULAR   STATUTORY   REGULATIONS. 


147 


the  sale  of  intoxicating  liquors  is  not  a  privilege  which  can  be 
exercised  as  of  common  right  and  hence  a  citizen  cannot  complain 
because  such  advantage  is  granted  to  one  or  more  persons  but  is 
denied  to  others.97 

§  124.  As  to  sales  by  druggists. 

In  many  states  provision  has  been  made  by  statute  as  to  sales 
by  pharmacists  and  surrounding  the  right  of  this  class  of  persons 
to  sell  by  various  conditions  and  restrictions.  Statutes  of  this 
character  are  a  valid  exercise  of  the  police  power.98  Where  sales 
by  druggists  are  authorized  by  the  law  of  the  state  under  certain 
conditions,  one  who  is  licensed  to  sell  in  accordance  with  such 


or  sale  of  any  substance  whose  keep- 
ing, use  or  sale  involves  danger  to 
the  general  public.  *  *  *  Her?  the 
sale  of  liquor  being  allowed  for  medi- 
cal purposes,  druggists  who  deal  in 
medicines  are  properly  named  as  a 
suitable  class  to  whom  to  intrust 
such  sale.  The  law  does  not  attempt 
to  prescribe  who  may  and  who  may 
not  become  druggists.  That  question 
each  individual  settles  for  himself. 
It  simply  says  that  only  druggists 
shall  sell  liquor.  It  is  like  a  law 
which  should  forbid  any  but  licensed 
engineers  from  running  the  engine  of 
a  passenger  train,  any  but  licensed 
attorneys  from  appearing  for  clients 
in  a  court  of  record,  any  but  medic;!  1 
graduates  from  engaging  in  the  prac- 
tice of  medicine.  No  law  of  this  kind 
interferes  witli  individual  liberty,  in 
its  true  sense.  Such  laws  protect  the 
public  only  in  matters  involving  risk 
and  danger  from  the  acts  of  unfit 
and  improper  persons.  They  cannot, 
be  adjudged  class  legislation  in  any 
objectionable  and  unconstitutional 
sense  of  the  term."     Per  Brewer,  J. 

07.  Hall  v.  Dunn  (Ore-.  1908),  97 
Pac.  811.  Per  Moore,  J.:  citing 
Sandys  v.  Williams,  46  Oreg.  327,  80 


Pac.  642;  State  v.  Richardson,  48 
Oreg.  309,  316,  85  Pac.  225,  8  L.  R.  A. 
(N.  S.)   362. 

98.  State  v.  Aulman,  76  Iowa  624, 
41  N.  W.  379;  State  v.  Mercer,  58 
Iowa  182,  12  N.  E.  269;  People  v. 
Longwell,  136  Mich.  302,  99  N.  W.  1 ; 
Henwood  v.  State,  41  Miss.  579;  State 
v.  Roller,  77  Mo.  120;  State  v.  Ham, 
64  N.  J.  L.  49,  44  Atl.  845. 

Placing  druggists  on  same 
footing  with  others. — A  statute 
has  been  held  not  to  be  unconstitu- 
tional because  it  places  druggists 
upon  the  same  footing  witli  others 
who  retail  liquor  to  be  drunk  as  a 
beverage.  Roscnbaum  v.  Common- 
wealth, 7  Ky.    Law.   Rep.  590. 

[ntoxicating  liquors  are  within  the 
words  of  a  statute  which  authorizes 
druggists  to  keep  "all  medicines  and 
poisons  authorized  by  the  United 
States  Dispensatory  and  Pharmaco- 
pcea  as  of  recognized  medicinal  util- 
ity." Pollard  v.  Allen,  96  Me.  455, 
52  Atl.  924. 

Where  a  statute  provides  for  the 
granting  of  "permits"  to  druggists 
t<>  sell  liquors  for  certain  purposes 
proof  thai  a  druggist  sold  liquor 
without   a   license  does  not  show  that 


14S  PARTICULAR  STATUTORY  REGULATIONS.  [§  125 

conditions  must  keep  himself  within  the  limitations  and  restric- 
tions imposed  by  the  statute  in  connection  with  such  sales." 
Where  a  statute  prohibits  a  druggist  from  selling  intoxicating 
liquor  to  one  whom  he  has  reason  to  believe  desires  to  use  it  as  a 
beverage  or  where  it  is  not  to  be  used  as  a  remedy  for  an  ailment 
or  to  one  under  the  influence  of  liquor  or  to  be  drank  upon  his 
premises  it  is  discretionary  with  him  to  sell  upon  a  proper  appli- 
cation therefor  and  he  need  give  no  reason  for  a  refusal  to  sell  nor 
is  he  liable  in  an  action  for  damages  for  such  refusal.1 

§  125.  Same  subjects-requiring  of  prescription. 

In  the  exercise  of  the  police  power  the  legislature  may  regulate 
how  whisky  may  be  sold  by  druggists  and  to  this  end  may  pre- 
scribe the  form  of  prescriptions  to  be  given  by  physicians.2 
Where  the  form  of  prescription  is  prescribed  by  statute,  in  order 
to  protect  the  druggist  the  prescription  must  comply  with  the 
statute  and  if  it  does  not  in  substance  conform  thereto  the  sale  is 
unauthorized.3  And  where  a  statute  prohibits  a  sale  by  a  drug- 
gist except  on  the  written  prescription  of  a  regular  practicing 
physician,  a  sale  by  a  druggist  without  a  prescription  is  held  not 
to  be  excused  by  the  fact  that  he  is  a  physician.4 

he  may  not  have  been  authorized  by  for  medical  purposes  in  local  option 
a  "permit"  to  sell  it.  Canfield  v.  districts.  Edgar  v.  .State  (Tex.  Civ. 
Leadville,  7  Colo.  App.  453,  43  Pac.  App.  1907),  102  S.  W.  439. 
gTQ  No  power  to  prohibit  sale  for 
99.  Commonwealth  v.  Gould,  158  medical  purposes.— In  Kentucky, 
Mass.  499,  33  N.  E.  656;  Common-  however,  it  is  declared  that  the  leg- 
wealth  v. '  Joslin,  158  Mass.  482,  33  islature  has  no  power  to  prohibit  the 
N.  E.  653,  21  L.  R.  A.  449n.  sale  of  liquor  as  a  medicine  though  it 

1.  Treahey  v.  Holliday,  43  Kans.  may  prescribe  as  a  conditon  of  a  sale 
29    22  Pac.  1004.  f°r    8Ucn    purpose    that    it    shall    be 

2.  Hutson  v.  Commonwealth,  32  made  upon  the  prescription  of  a  reg- 
Ky.  Law  Rep.  392,  105  S.  W.  955.  ular  practicing  physician.  Common- 
Per  Hokon,  J.;  citing  Commonwealth  wealth  v.  Fowler,  96  Ky.  166,  28  S. 
v.  Fowler,  17  Ky.  Law  Rep.  1209,  96  W.  786,  33  L.  R.  A.  839. 

Kv    166    34  S.  W.  21.  3*  Hutson     v.     Commonwealth,     32 

Regulation  of  sale  in  local  op-  Ky.   Law   Rep.   392,    105    S.   W.   955. 

tion   districts.— The   legislature  has  Per  Hokon,  J. 

power  to  regulate  the  sale  of  liquor  4.  Tilford  v.    State,    109   Ind.    359, 


§  L26] 


PARTICULAR  STATUTORY  REGULATIONS. 


149 


§  126.  Same  subject — extent  of  right  to  sell. 

A  statute  which  authorizes  pharmacists  lawfully  registered  to 
keep  spirituous  liquors  for  compounding  their  medicines  includes 
the  right  to  sell  the  medicines  so  compounded  but  it  docs  not  con- 
fer the  right  to  sell  such  liquors  to  others  for  the  purpose  of  being 
compounded  as  in  such  a  case  the  purchaser  is  under  no  obliga- 
tion to  so  use  them  and  the  object  of  the  statute  which  is  to  re- 
strict and  suppress  the  sale  of  such  liquors  and  the  evils  resulting 
therefrom  might  thereby  be  defeated.5  And  where  a  statute  pro- 
vides that  "  durggists  may  sell  for  medicinal  purposes  only,  pure 
alcohol  to  other  druggists,  apothecaries  and  physicians  known  to 
be  such  "  a  sale  of  alcohol  by  a  commission  merchant  to  wholesale 
druggists  does  not  come  within  the  permissive  terms  of  the  statute, 
there  being  no  evidence  that  such  commission  merchants  were 
druggists.6 


10  N.  E.  107.  See  also  State  v. 
Anderson,  81  Mo.  78 ;  wherein  it  is 
declared  that  to  allow  druggists  to 
act  in  the  douhle  capacity  of  practic- 
ing physician  and  salesman,  would 
lead  to  such  abuse  as  to  make  the  law 
a  dead  letter.  But  see  Boone  v.  State, 
10  Tex.  App.  418,  38  Am.  Rep.  641, 
holding  that  where  there  was  a  case 
of  actual  sickness,  as  was  shown  by 
the  facts  in  this  case,  which  required 
the  use  of  whisky  as  a  medicine,  the 
defendant  being  a  regular  practicing 
physician  had  the  right  to  sell  it 
without  having  the  prescription  of 
another  physician.  The  court  de- 
clared (hat  the  act  did  not  apply  to 
practicing  physicians  when  the  whisky 
is  sold  as  a  medicine  in  case  of  actual 
sickness  but  to  persons  who  were  not 
physicians  and  therefore  not  supposed 
to  be  proper  judges  of  the  necessity 
of  giving  this  stimulant  as  such,  or 
as  a   solvent  of  other  medicines. 

Where    there    was    nothing    in 
the   prescription   to    indicate    an 


evasion  of  the  statute  yet  where 
it  appeared  that  instead  of  the  com- 
pound called  for  by  the  prescription 
whisky  alone  was  sold  and  such  sale 
was  in  local  option  territory  in  which 
territory  a  sale  could  only  be  made 
upon  a  prescription  conforming  to 
the  statute  it  was  held  that  the  de- 
fendant's guilt  was  properly  ad- 
judged. Hutson  v.  Commonwealth, 
32  Ky.  Law  Rep.  392,  105  S.  W. 
955. 

5.  State  v.  Brown,  60  N.  H.  205; 
State  v.  Shaw.  58  X.  H.  72. 

Amount  of  purchases  as  evi- 
dence of  intent  to  violate  law.— 
In  the  absence  of  evidence  of  the  ex- 
tent or  magnitude  of  a  defendant's 
business  as  a  druggist,  no  presump- 
tion of  an  intent  to  sell  intoxicating 
liquors  in  violation  of  the  law  arises 
from  the  quantity  of  liquor  purchased 
by  him.  Innocence  is  presumed  until 
the  contrary  is  proved.  Pollard  v. 
Allen.  96  Me.  -i:.:..  52  Atl.  924. 

<'».  Mills  v.  Perkins,  120  Mass.  41. 


150 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  127 


§  127.  Returns  by  druggists. 

A  frequent  statutory  provision  is  that  requiring  a  druggist  or 
pharmacist  to  make  a  report  or  statement  to  some  designated  offi- 
cial containing  in  more  or  less  detail  the  facts  as  to  the  sale,  such 
as  the  person  to  whom  made,  the  amount  sold,  and  the  purposes  for 
which  sold.7  A  statute  requiring  that  returns  be  made  to  a  desig- 
nated public  official  of  all  sales  of  intoxicating  liquors  by  any  per- 
son holding  a  permit  or  license  to  manufacture  or  sell  the  same  is 
held  to  require  one  who  sells  liquors  on  the  prescription  of  a  phy- 
sician to  make  such  return.8  And  a  statute  requiring  druggists 
in  counties  where  a  local  option  law  is  in  force  to  report  to  the 
prosecuting  attorney  of  the  county,  under  oath,  all  sales  of  intoxi- 
cating liquors  does  not  violate  constitutional  provisions  prohibit- 
ing unreasonable  searches  and  seizures  or  providing  that  no  per- 
son shall  be  compelled  in  a  criminal  case,  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty  or  property  without  due 


7.  Sufficiency  of  report.— A  stat- 
ute requiring  a  druggist  in  a  county 
adopting  prohibition  to  make  weekly 
reports  to  the  prosecuting  attorney, 
giving  the  full  name  and  residence  of 
every  person  procuring  liquor  at  his 
drug  store  during  the  previous  week, 
the  kind  and  quantity  of  liquor  pro- 
cured, the  date  of  procuring  the  same, 
and  the  object  for  which  each  pur- 
chase  is  made,  is  not  prohibitory  of 
the  use  of  ditto  marks  to  indicate 
dates,  residence,  kind,  and  quantity  of 
liquor  procured.  People  v.  Remus, 
135  Mich.  629,  98  N.  W.  397,  100 
X.  W.  403. 

"Where  object  of  purchase  must 
be  stated. — Where  the  object  for 
which  Liquor  is  purchased  from  a 
druggist  must  be  stated  in  a  report 
which  be  is  required  to  make  the  word 
"medical"  has  been  held  to  be  a 
sufficient  statement  thereof.  People 
v.  Remus,  135  Mich.  029,  98  N.  \V. 
397,  100  X.  W.  403. 


As  to  repeal  of  act  requiring 
record.— A  general  statute  requiring 
every  druggist  to  keep  an  accurate 
register  in  a  book  kept  for  that 
special  purpose  of  every  sale  of  liquor 
made  by  him,  is  not  repealed  or  sus- 
pend by  the  fact  that  an  election 
held  in  a  county  under  a  special  local 
option  law  applicable  to  that  county 
has  resulted  against  the  sale  of  liquor. 
Lawson  v.  Commonwealth,  23  Ky. 
Law  Rep.   1983,  66  S.  W.  1010. 

In  Texas  it  has  been  decided  that 
the  legislature  may  require  parties 
selling  intoxicants  on  prescription  in 
local  option  territories  to  file  with  the 
clerk  on  the  first  of  each  month  all 
prescriptions  filled  by  the  seller  dur- 
ing the  preceding  month  together 
with  an  affidavit  attached  thereto. 
Holland  v.  State,  51  Tex.  Cr.  547,  103 
S.  W.  631. 

8.  State  v.  Chamberlain,  74  Iowa. 
266,  37  N.  W.  326. 


§    128]  PARTICULAR  STATUTORY  REGULATIONS.  151 

process  of  law.  Such  a  statute  is  held  to  be  a  legitimate  exercise 
of  the  police  powers  of  the  state  in  respect  to  the  sale  of  intoxicating 
liquors.9 

§  128.  Requiring  written  application  or  request. 

It  is  within  the  power  of  the  state  to  impose  certain  conditions 
with  which  a  purchaser  or  seller  of  intoxicating  liquors  must 
comply,  such  as  that  the  purchaser  shall  present  a  signed  request 
stating  for  whom  and  for  whose  use  the  liquor  is  bought,  his 
residence  and  the  number  of  the  house  if  the  houses  are  numbered. 
It  may  also  require  that  the  exact  purpose  for  which  such  liquor 
is  to  be  used  must  be  stated.  Such  requirements  must  be  complied 
with  and  the  purchaser  cannot  avoid  compliance  therewith  by 
proving  oversight,  forgetfulness  or  mistake.10  So  where  a  statute 
requires  that  before  selling  intoxicating  liquors  a  written  appli- 
cation must  be  made  out  stating  the  name  of  the  purchaser,  his 
residence  and  the  name  of  the  person  for  whom  purchased,  the 
statute  is  not  complied  with  where  a  pharmacist  sells  such  liquor 
on  an  application  containing  the  name  of  the  purchaser  only  and 
it  is  no  defense  to  a  prosecution  for  a  violation  of  the  act  that  the 
defendant  acted  without  criminal  intent,  or  in  the  belief  that  such 
requirements  of  the  law  were  immaterial.11  And  it  has  been  de- 
cided that  the  provisions  of  a  statute  requiring  druggists  having 
a  permit  to  sell  intoxicating  liquor  to  do  so  only  upon  an  affidavit 
made  by  the  applicant  and  subscribed  by  him  in  ink.  are  man- 
datory and  a  sale  of  intoxicating  liquor  made  for  medical  pur- 
poses without  complying  with  such  provisions  is  a  criminal 
offensi  .'- 


;>.  People    v.    Henwood,    123    Mich.  «7  pac.  370;  citing  State  v.  Davis,   14 
317,  82  X.  W.  70.  Kan.  60,  24  Pac.  73.    The  eourl  said: 
!<>•  State  v.  Swallum,  111  Iowa  37.  "The  evident  object  of  these  require- 
82  N.  W.  439.  ments  of  the  statute  furnish  an  mi- 
ll. State  v.   Harris.    122   Iowa    78,  mistakahle   guide    for    its    interpreta- 
97  N.  W.  1093.  tion.    Manifestly  it  was  intended  that 
12.  state  v.  Gregory,  74  Elans.  467,  an  oath  with  all  its  solemnities  and 


152  PARTICULAR  STATUTORY  REGULATIONS.         [§§   129,  130 

§  129.  As  to  sales  by  social  clubs. 

A  statute  providing  that  any  corporation  chartered  and  organ- 
ized as  a  social  club  and  paying  a  certain  tax  may  distribute  and 
dispense  intoxicating  liquors  to  and  among  its  members  without 
obtaining  any  license  or  paying  any  other  tax  provided  that  such 
corporation  is  organized  and  conducted  as  a  bona  fide  social  club 
does  not  violate  a  constituional  provision  forbidding  the  legis- 
lature from  granting  to  any  private  corporation,  association  or 
individual  any  special  or  exclusive  privilege,  right  or  immunity. 
Such  a  statute  is  a  general  law.13 

§  130.  Inspection  of  liquors. 

The  state  may  provide  for  the  inspection  of  liquors  and  the 
appointment  of  an  inspector.14     It  has  the  power  to  impose  re- 


formalities  should  be  administered  to 
every  applicant  upon  sales  of  li- 
quor to  persons  desiring  to  use  it  as 
a  beverage.  The  law  provides  that 
these  applications  shall  be  filed  in  the 
office  of  the  probate  judge,  where  they 
are  open  to  public  inspection  and  ex- 
amination. They  might  become  use- 
ful as  evidence  in  prosecutions  for 
violations  of  the  law.  It  is  impor- 
tant therefore  that  the  name  of  the 
purchaser  should  not  be  open  to 
erasure  or  change  on  account  of  use 
in  examination,  lapse  of  time,  or 
otherwise.  The  provision  that  the 
name  shall  be  signed  in  ink  sub- 
serves this  purpose."  Per  Graves,  J. 
In  Missouri  it  has  been  decided 
that  a  statute  which  prohibits  a 
druggist  from  selling  or  giving  away 
or  otherwise  disposing  of  "alcohol  or 
intoxicating  liquor  of  any  kind  in  any 
quantity  less  than  fo\ir  gallons  for 
any  purpose  except  on  a  written 
prescription  "  is  for  the  purpose  of 
regulating  the  sale  of  such  liquors 
by  druggists  and  is  violated  where  a 
prescription  is  compounded  by  a  drug- 


gist without  the  prescription  required 
by  law,  without  regard  to  the  propor- 
tion of  liquor  to  the  other  ingredients 
or  the  intoxicating  character  of  the 
prescription.  State  v.  Sharpe,  119 
Mo.  App.  386,  95  S.  W.  298. 

13.  City  of  Norfolk  v.  Board  of 
Trade  &  B.  M.  Ass'n  (Va.  1909),  63 
S.  E.  987. 

As  to  sales  by  social  clubs.  See 
chap.   XXIII  herein. 

14.  Attorney  General  v.  Lawton,  30 
Mich.  386;  Catherwood  v.  Collins,  48 
Pa.  St.  480. 

Where  inspector  not  ap- 
pointed.— Where  an  "  act  to  prevent 
the  adulteration  of  alcoholic  liquors  " 
provides  that  an  inspector  shall  be  ap- 
pointed by  a  public  functionary  and 
he  has  failed  or  neglected  to  make 
such  appointment,  it  has  been  de- 
cided that  one  who  manufactures, 
sells  or  imports  adulterated  liquors, 
knowing  them  to  be  such,  comes  never- 
theless, within  the  prohibitions  of  the 
law  and  subject  to  its  penalties  but 
that  the  vendor  of  such  liquors  which 
are  pure,  though  not  inspected,  is  not 


§  131]  PARTICULAR  STATUTORY  REGULATIONS.  153 

strictions  upon  one  class  of  intoxicating  liquors  which  is  not  appli- 
cable to  another  class.  Thus  it  may  require  the  inspection  of  all 
beer  and  malt  liquors  and  exact  a  fee  therefor  and  such  a  regu- 
lation is  not  subject  to  the  objection  that  it  is  not  uniform  and 
makes  an  arbitrary  classification  in  segregating  beer  and  malt 
liquors  and  should  apply  to  all  intoxicating  liquors.15  And  it  is 
no  objection  to  the  validity  of  such  an  act  that  the  inspection  fees, 
which  the  manufacturers  are  required  to  pay  thereunder  are 
greatly  in  excess  of  the  cost  of  inspection  and  arc  a  source  of 
revenue  to  the  state.16  And  the  fact  that  by  statute  brewers  are 
classified  with  manufacturers  and  merchants  and  are  permitted 
to  manufacture  beer  upon  the  same  conditions  that  the  manu- 
facture and  sale  of  other  commodities  is  permitted  does  not  work 
as  an  estoppel  upon  a  subsequent  legislature  so  as  to  prevent  it 
from  legislating  upon  the  subject  or  from  changing  the  existing 
law  in  respect  thereto.17 

§  131.  As  to  adulteration  of  liquors. 

The  preservation  of  the  public  health  is  one  of  the  objects  to  be 
attained  by  the  exercise  of  the  police  power  and  therefore  it  is  a 
legitimate  exercise  of  this  power  to  pass  legislation  aimed  against 
the  adulteration  of  liquors  and  wines  and  to  provide  in  what 
manner  the  adulterated  article  may  be  distinguished  from  the  pure 
article.18     So  it  has  been  decided  that  one  who  sells  impure  and 

within  the  prohibitions  nor  subject  to  this   subject,   they   not   only   did   not 

the   penalties   unless   an    inspector   of  attempt    to    bind    succeeding    legisla- 

whose   services   he   mighl    avail    him-  tures,  but  in  the  exercise  of  this  police 

self,    has   been   appointed.      Smith    v.  power  they  were  without  authority  to 

Kihhee,  9  Ohio  St.  563.  estop,   not  only   their   successors,  but 

15.  State  v.  Bixman,  162  Mo.  1.  62  themselves."    Per  Oautt.  .T. 

g_  vv\  S2S.  ls-  Ex  parte  Kohler,  74  Cal.  38,  15 

16.  State  v.  Bixman,  162  Mo.  1,  62  Pac.  436;  State  v.  Stanton.  37  Conn. 
S.  W.  828.  421. 

17.  State  v.  Bixman.  162  Mo.  1,  (52  The  labeling  of  whisky,  mix- 
S.  W.  82S.  The  court  said:  "While  tures,  and  imitations  thereof, 
former  legislatures  were  free  to  enact  under  the  food  and  drugs  act  of 
such    regulations   as   they   saw    fit    on  June     30,     1906.— UNITED     STATES 


154  PARTICULAE  STATUTORY  REGULATIONS.  [§   131 

adulterated  wine  iu  violation  of  the  statute  is  subject  to  the  pen- 


Departmext  of  Agriculture,  Office 
of  the  Secretary. 

Food    Inspection       Decision    No. 
113. 

Under  the  Food  and  Drugs'  Act  of 
June  30,  1900,  all  unmixed  distilled 
spirits  from  grain,  colored  and  flav- 
ored with  harmless  color  and  flavor, 
in  the  customary  ways,  either  by  the 
charred  barrel  process,  or  by  the  ad- 
dition of  caramel  and  harmless  flavor, 
if  of  potable  strength  and  not  less 
than  80°  proof,  are  entitled  to  the 
name  whisky  without  qualification. 
If  the  proof  be  less  than  80°,  i.  e.,  if 
more  water  be  added,  the  actual  proof 
must  be  stated"  upon  the  label  and 
this  requirement  applies  as  well  to 
blends    and   compounds   of   whisky. 

Whiskies  of  the  same  or  different 
kinds,  i.  e.,  straight  whisky,  recti- 
fied whisky,  redistilled  whisky  and 
neutral  spirits  whisky  are  like  sub- 
stances and  mixtures  of  such  whis- 
kies, with  or  without  harmless  color 
or  flavor  used  for  purposes  of  color- 
ing and  flavoring  only,  are  blends 
under  the  law  and  must  be  so  labeled. 
In  labeling  blends  the  Act  requires 
two  things  to  be  stated  upon  the 
label  to  bring  the  blended  product 
within  the  exception  provided  by  the 
statute:  First,  the  blend  must  be 
labeled,  branded  or  tagged  so  as  to 
plainly  indicate  that  it  is  a  blend,  in 
other  words  that  it  is  composed  of  two 
or  more  like  substances,  which  in  the 
case  of  whisky  must  each  be  of  itself 
a  whisky,  and  Second,  the  word 
"  blend  "  must  be  plainly  stated  upon 
the  package  in  which  the  mixture  is 
offered  for  sale.  A  mixture  of  whis- 
kies therefore,  with  or  without  harm- 
less coloring  or  flavoring,  used  for 
coloring  and  flavoring  only,  is  cor- 
rectly labeled  "  Kerwan  Whisky.  A 
Blend  of  Whiskies." 


Since  the  term  whisky  is  restricted 
to  distillates  from  grain,  and  distil- 
lates from  other  sources  are  unlike 
substances  to  distillates  from  grain, 
such  distillates  from  other  sources 
without  admixture  with  grain  distil- 
lates are  misbranded  if  labeled 
whisky  without  qualification,  or  as  a 
blend  of  whiskies.  However,  mix- 
tures of  whisky,  with  a  potable  al- 
coholic distillate  from  sources  other 
than  grain,  such  as  cane,  fruit  or  veg- 
etables, are  not  misbranded  if  labeled 
compound  whisky,  provided  the  fol- 
lowing requirements  of  the  law  are 
complied  with :  First,  that  the  prod- 
uct shall  be  labeled,  branded  or 
tagged  so  as  to  plainly  indicate  that 
it  is  a  compound,  i.  e.,  not  a  mixture 
of  like  substances,  in  this  case  whis- 
kies; and,  Second,  that  the  word 
"  Compound "  is  plainly  stated  upon 
the  package  in  which  the  mixture  is 
offered  for  sale.  For  example,  a  mix- 
ture of  whisky,  in  quantity  sufficient 
to  dominate  the  character  of  the  mix- 
ture, with  a  potable  alcoholic  distil- 
late from  sources  other  than  grain 
and  including  harmless  color  and 
flavor  is  correctly  labeled  "  Kerwan 
Whisky.  A  compound  of  whisky  and 
cane  distillate."  Unmixed  potable  al- 
coholic distillates  from  sources  other 
than  grain,  with  or  without  harmless 
color  or  flavor,  are  not  misbranded  if 
labeled  "  Imitation  Whisky." 

When  an  essence  or  oil  is  added  to 
a  distillate  of  grain,  which  without 
such  addition  is  entitled  to  the  name 
whisky,  and  the  effect  of  such  addi- 
tion is  to  produce  a  product  which 
simulates  a  whisky  of  another  kind 
different  from  the  kind  of  whisky  to 
which  the  essence  is  added,  the  mix- 
ture is  an  imitation  of  the  particular 
kind  of  whisky  which  is  simulated, 
e.   g.,   if  rye  essence  be  added   to   a 


§  131] 


PARTICULAR  STATUTORY   REGULA  I 


155 


alty  thereby  imposed  though  at  the  time  of  the  sale  In-  is  the  agent 
of  a  principal  who  resides  without  the  state.19  And  the  man; 
of  a  mercantile  corporation  is  held  liable  to  the  penalty  so  impost  d 
when  the  adulterated  article  is  sold  or  offered  for  sale  by  an  agent 
of  such  corporation  acting  within  the  scope  of  his  authority.20 
And  in  some  states  sellers  of  liquors  are  required  by  statute  to 
take  an  oath  not  to  adulterate  them.21     And  it  has  been  decided 


highly  rectified  distillate  of  corn,  the 
mixture  is  misbranded  if  labeled  rye 
whisky.  Such  a  mixture  is  not  mis- 
branded  if  labeled  "  Whisky — Imita- 
tion Rye." 

Nothing  in  the  Fond  and  Drugs'  Act 
inhibits  any  truthful  statement  upon 
the  label  of  any  product  subject  to 
its  terms,  such  as  the  particular  kind 
or  kinds  of  whisky,  vended  as  whisky 
or  as  blends  or  compounds  thereof,  but 
when  descriptive  matter,  qualifying 
the  name  whisky,  is  placed  upon  the 
label,  it  must  be  strictly  true,  and 
not  misleading  in  any  particular. 
The  law  makes  no  allowance  for  sel- 
ler's praise  upon  the  label,  if  false 
or  misleading,  and  the  product  is  mis- 
branded  if  a  false  or  misleading  state- 
ment be  made  upon  one  part  of  the 
label  and  the  truth  about  the  product 
be  stated  upon  another  part.  Simi- 
larly a  product  is  misbranded  if  the 
label  is  false  or  misleading  through 
the  use  of  a  trade-marked  statement, 
design  or  device.  The  fact  that  a 
phrase,  design  or  device  is  registered 
in  the  U.  S.  Patent  Office  gives  no 
license  for  its  deceptive  use.  All  de- 
scriptive matter  qualifying  or  partic- 
ularizing the  kind  of  whisky,  whether 
volunteered  or  required  by  the  lav  I 
be  staled,  as  in  the  case  of  blends  and 
compounds,  musl  be  given  due  prom- 
inence as  compared  with  the  size  of 
type  and  the  background  in  which 
the  name  whisky  appears,  so  thai  tin- 
label  as  a  whole  shall  not  be  mislead- 
ing in  any  particular. 


Food  Inspection  Decisions  4.">.  •:.">, 
95  and  1)8,  and  all  rulings  in  conflict 
herewith,  are  hereby  revoked. 

Franklin  MacVeagh, 
Secretary  of  the  Treasury. 

James  Wilson, 
Secretary  of  Agriculture. 

Charles  Nagel, 
Secretary  of  Commerce  &  Labor. 

Washington,    D.     C.    February    16, 
1910. 

To  justify  a  conviction  in  such 
a  case  it  is  not  necessary  to  prove 
that  the  defendant  knew  that  the  li- 
quors were  adulterated.  State  v. 
Stanton,  37  Conn.  421. 

Adulteration  as  defense  to  ac- 
tion for  liquors  sold. —  In  this  con- 
nection it  has  been  decided  that  a 
statute  which  provides  that  in  all 
actions  for  the  price  of  any  spirituous, 
vinous  or  malt  liquors  the  fact  that 
such  liquors  or  admixtures  thereof 
were  impure,  vitiated  or  adulterated 
shall  constitute  a  good  and  sufficient 
defense  applies  only  in  those  i 
where  the  quality  or  value  of  such  li- 
quor 'ii  impaired  by  the  im- 
purity, vitiation  or  adulteration. 
Clohessy  v.  Roedelheim,  99  Pa.  St.  5G. 

19.  Meyer  v.  state,  54  Ohio  St. 
242,  43  X.  K.  164. 

•2(K    Meyer     V.     stale.     .".4     Ohio     St. 

242,   43   X.   E.    lt!4. 
21.  state  v.  Ferguson,  72  Mo.  297; 

state    v.    Martin.    3    Ileisk.    (Term.) 
487. 


156  PARTICULAR  STATUTORY  REGULATIONS.  [§   132 

that  such  a  statute  applies  to  druggists,  and  that  they  are  obliged 
to  take  the  oath  required  that  they  will  not  adulterate  liquors  sold 
by  them,22  though  they  may  be  permitted  to  mix  and  adulterate 
liquors  for  medical  and  mechanical  purposes.23 

§  132.  Designation  of  cereals  to  be  used  in  manufacture  of  malt 
liquors. 
The  power  of  the  legislature  to  regulate  and  prohibit  the  sale 
or  manufacture  of  intoxicating  liquors  includes  the  right  to  pre- 
scribe what  cereals  may  be  used  in  the  manufacture  of  beer  and 
malt  liquors,  and  to  exclude  a  cereal  which  in  its  judgment  is 
harmful  or  injurious  to  the  health  of  the  people.24  So  where  a 
statute  in  Missouri  prescribed  what  cereals  should  be  used  in 
manufacturing  beer  and  excluded  the  use  of  wheat  and  corn  it 
was  said  by  the  court :  "  Much  indignation  is  expressed  in  one  of 
the  briefs  that  the  legislature  has  assumed  to  itself  to  prescribe 
the  cereals  which  shall  be  used  in  the  manufacture  of  beer,  especi- 
ally in  excluding  wheat  and  corn.  Counsel  assume  that  these 
two  cereals  make  a  perfectly  innocuous  beer.  As  to  this  we  need 
only  say  that  the  legislature  can  absolutely  prevent  the  brewing 
of  beer  or  other  intoxicating  liquor  if  it  sees  fit,  and  in  the  exer- 
cise of  its  police  power  it  may  exclude  any  cereal  that  in  its  judg- 

22.  Xewman  v.  State,  7  Lea  referred  to  is  not  in  conflict  with  this 
(Tenn.)    G17.  view,   as   that,    while   permitting   the 

23.  State  v.  Ferguson,  72  Mo.  297,  mixture  and  adulteration  of  liquors 
wherein  the  court  said:  "The  law  for  medicinal  and  mechanical  pur- 
under  consideration  exempts  no  one  poses,  must  be  understood  as  taken 
whomsoever  from  its  penal  provisions,  in  subjection  to  the  provisions  of  sec- 
except  upon  the  performance  of  the  tion  4,  supra,  requiring  the  making 
conditions  which  it  prescribes.  We  of  the  oath  and  the  giving  of  bond  as 
are  not  authorized  to  make  exceptions  a  condition  precedent  to  making  any 
and  exemptions  not  made  by  the  legis-  lawful  sale  of  liquors."  Per  Sher- 
lature.      The    druggist    and   the   phy-  wood,   C.  J. 

sician,   therefore,   stand  on  the  same  See  also  State  v.  Summers,  142  Mo. 

footing  as  the  saloon   keeper,   if  sell-  586,  44  S.  W.  797. 

ing    in    violation    of   the    statute,    by  24.  State   v.    Bixman,    162    Mo.    1, 

not  having  previously  made  oath  and  62  S.  W.   828. 

given  bond.     Section  6  of  the  chapter 


§   133]  PARTICULAR  STATUTORY  REGULATIONS.  157 

ment  would  be  deleterious  to  the  health  of  the  people  of  this  state 
and,  if  there  be  a  doubt  as  to  the  noxious  character  of  the  cereal, 
then  the  legislative  determination  of  the  fad  is  conclusive." 
But  the  fact  that  the  legislature  in  providing  that  only  certain 
enumerated  things  shall  enter  into  the  manufacture  of  beer  does 
not  mention  water  is  not  to  be  construed  as  meaning  that  water  is 
excluded,  as  in  brewing  beer  water  is  necesasry  and  the  principle 
applies  that  all  laws  must  be  given  a  reasonable,  and  not  an  ab- 
surd, construction.26 

§  133.  As  to  furnishing  public  record  of  internal  revenue  receipt. 
The  state  may  in  the  exercise  of  its  police  powers  legislate  in 
regard  to  the  possession  of  receipts  for  the  payment  of  an  internal 
revenue  tax  to  the  United  States  and  provide  what  the  effect  of 
such  possession  shall  be  so  far  as  it  tends  to  show  a  violation  of 
the  state  law  prohibiting  or  restricting  the  liquor  traffic.27  So  in 
North  Dakota  it  has  been  decided  that  a  state  may  in  the  exercise 
of  such  power  make  it  a  public  offense  for  any  citizen  of  the  state 
to  procure  a  receipt  issued  to  him  by  the  government  of  the  United 
States  for  the  payment  of  the  internal  revenue  tax  upon  the  occu- 
pation of  a  retail  dealer  in  distilled,  malt  and  fermented  liquors 
and  to  neglect  or  refuse  to  furnish  a  public  record  thereof.28     The 

25.  State  v.  Bixman,  102  Mo.  1,  30,  more  onerous  consequences  on  the 
62  S.  W.  828.     Per  Gantt,  J.  paying  of  such  federal  tax  than  Con- 

26.  State  v.  Bixman,  162  Mo.  1,  gress  has  seen  fit  to  prescribe.'  This 
62  S.  W.  828.  is  all  very  true  but  the  fallacy  of  this 

27.  State  v.  Hanson,  16  X.  D.  347,  argument  consists  in  the  erroneous  i  - 
113  X.  W.  371.  sumption    as    before    staid,    that    by 

28.  stale  v.  Sanson,  16  X.  D.  347,  the  ad  in  question  tbe  state  has  at- 
113  X.  W.  371-  The  court  said:  tempted  to  add  other  duties  to  the 
"Petitioner's  counsel  urged  thai  eon-  taxpayer,  as  such,  with  reference  to 
gress  has  declared  what  the  duties  of  his  compliance  with  the  federal  stat- 
a  taxpayer  are  with  reference  to  ute.  The  reasoning  of  counsel,  if  car- 
making  public  the  fad  of  the  i<su-  ried  to  its  logical  end.  would  inevita- 
ance  of  such  internal  revenue  receipts,  bly  lead  to  the  erroneaus  theory  that 
and  that  the  state  cannot  add  to  or  Congress  by  act  imposing  such  tax 
detract  from  such  duties.  They  say  and.  prescribing  regulations  to  aid  in 
'It  cannot  attach  greater  burdens  or  the  collection  thereof,  lias  thereby  de- 


158 


PARTICULAR  STATUTORY  REGULATIONS. 


[§  133 


court  declared  that  each  government  acts  independently  of  the 
other  as  to  the  exercise  of  functions  exclusively  belonging  to  such 
other  and  that  it  does  not  follow  because  Congress  has  been  given 
the  power  to  tax  a  business  or  occupation,  the  states  through  the 
exercise  of  their  police  power  could  not  regulate  or  entirely  pro- 
hibit such  business  or  occupation,  although  the  necessary  effect 
thereof  might  be  to  cut  off  or  materially  decrease  such  revenue 
to  the  general  government.  "  In  other  words,  the  taxing  power  of 
the  government,  and  the  regulations  prescribed  by  Congress  in  re- 
lation thereto,  in  no  manner  curtail  or  interfere  with,  nor  were 
they  intended  to  curtail  or  interfere  with,  the  exercise  by  the 
states  of  their  undoubted  police  powers."  29 


prived  the  states  of  the  exercise  of 
their  inherent  police  powers  to  regu- 
late cr  prohibit  the  business  thus 
taxed  because  of  the  fact  that  the 
exercise  of  such  police  powers  may 
tend  in  some  degree  to  interfere  with 
the  operation  of  such  federal  tax  law 
by  discouraging  persons  from  com- 
plying therewith.  As  before  ob- 
served, Congress  has  not  attempted, 
by  the  imposition  of  this  tax,  nor  by 
the  enactment  of  regulations  to  aid 
in  its  collection,  to  in  any  manner  in- 
terfere with  or  limit  the  states  in  the 


enactment  and  enforcement  of  such 
laws  as  they  may  deem  necessary 
under  their  police  power  to  either 
regulate  or  entirely  prohibit  the  busi- 
ness thus  taxed.  On  the  contrary 
Congress  has  no  such  power  delegated 
to  it  by  the  constitution.  The  power 
to  tax  and  the  incidental  power  to 
make  regulations  to  aid  in  the  collec- 
tion of  such  tax,  does  not  in  the  least 
interfere  with  the  police  power  of 
the  state  to  regulate  or  prohibit  the 
business  thus  taxed."  Per  Fisk,  J. 
29.  Per  Fisk,  J. 


MUNICIPAL  POWEBS  AND  REGULATIONS.  L59 


CHAPTER  VII. 

MUNICIPAL  POWERS  AND  REGULATIONS. 

Section  134.  Legislature  may  delegate  power  to  municipal  corporation. 

135.  Grants  strictly  construed. 

136.  Incidental  or  implied  powers. 

137.  Same  subject— power  to  suppress,  regulate  or  restrain. 

138.  Power  of  city  to  prohibit. 

139.  Grant  of  power  to  regulate,  restrain  or  license. 

140.  Prohibiting  keeping  for  unlawful  sale. 

141.  Ordinances  should  be  general. 

142.  Ordinances  must  be  reasonable. 

143.  Where  title  of  ordinance  contains  surplusage. 

144.  Ordinances  having  extra-territorial  effect. 

145.  Ordinances  should  conform  to  law  of  state. 

146.  Same  subject — application  of  rule. 

147.  Same  subject — engaging   in   liquor  traffic. 

148.  Same  subject— Ordinance   providing   for   fine  or   punishment. 

149.  As  to  powers  of  municipal  officers. 

150.  General  law  as  repealing  municipal  powers  and  ordinances. 

151.  Act  conferring  power  on  city  as  repealing  general  law. 

152.  Construing  statutes  and  ordinances  together. 

153.  Statute  and  ordinance  making  same  act  an  offense. 

154.  Construing  ordinances  together. 

155.  Ordinance   invalid   or   invalid   in   part. 

156.  Prohibiting  traffic  in  portions  of  city. 

157.  Same  subject — ordinances  construed. 

158.  As  to  ordinances  where  territory  annexed  to  city. 
15'9.  Ordinance  as  to  screens,  etc. 

100.  Ordinances  as  to  stalls,  booths  or  inclosures. 

161.  Prohibiting  sales  to  minors. 

162.  Prohibitions   as  to   women. 

163.  Prohibitions  as  to  employment    of  women. 

164.  Requiring  Sunday  closing. 

lti.").  Requiring  closing  other  than   Sundays. 


100 


MUNICIPAL  POWERS  AND  REGULATIONS. 


[§  134 


Section   166.  Power  to  designate  hours  of  closing  and  opening  of  saloons. 

167.  Same  subject — ordinances    held    valid — instances. 

168.  Same  subject — ordinances  held  invalid — instances. 

169.  Ordinances  as  to  quantity. 

170.  Ordinance  as  to  who  may  conduct  business. 

171.  Ordinances  as  to  access  of  officials  to  premises. 

172.  Ordinances  affixing  penalty. 

Sec.  134.  Legislature  may  delegate  power  to  municipal  corpora- 
tion. 

The  power  which  the  legislature  possesses  to  control,  regulate, 
restrain  or  prohibit  the  liquor  traffic  is  one  which  it  may  delegate 
to  municipal  corporations,  assuming  of  course  that  there  is  no 
restriction  or  limitation  in  the  constitution  of  the  state  "uon  its 
power  to  so  act.1     So  the  legislature  may  give  power  to  the  excise 


!•  Alabama. — Russellville  ex  parte, 
in  re  Hurley,  95  Ala.   19,  11  So.  18. 

Arkansas. — Drew  County  v.  Ben- 
nett, 43  Ark.  365. 

California. — Ex  parte  Campbell, 
74  Cal.  20,  15  Pac.  318,  5  Am.  St. 
Rep.  418. 

Colorado. — Mayor  v.  Shatturck,  19 
Colo.  104,  34  Pac.  947,  41  Am.  St. 
Rep.  208. 

Georgia. — Rooney  v.  City  Council 
of  Augusta,  117  Ga.  709,  45  S.  E. 
72;  Perdue  v.  Ellis,  18  Ga.  586. 

Illinois. — Gunnarssohn  v.  City  of 
Sterling,  92  111.  569. 

Indiana. — City  of  Greencastle  v. 
Thompson,  168  Ind.  493,  81  N.  E. 
497. 

Kentucky. — Board  of  Trustees  v. 
Watson,  5  Bush  660. 

Louisiana. — Baton  Rouge  v.  Butler, 
118  La.  73,  42  So.  650;  State  v. 
Harper,  42  La.  Ann.  312,  7  So.  446. 

Massach  ust  l  fs. — Commonwealth  v. 
Fredericks,    119    Mass.    199. 

Michigan.  Sherlock  v.  Stuart,  96 
Mich.  193,  55  X.  W.  845,  21  L.  R.  A. 
580n. 


Minnesota. — State  v.  Ludwig,  21 
Minn.  202. 

New  Jersey. — Riley  v.  Trenton,  51 
N.  J.  L.  498,  18  Atl.  116,  5  L.  R.  A. 
352. 

North  Carolina. — State  v.  Austin, 
114  N.  C.  855,  19  S.  E.  919,  41  Am. 
St.  Rep.  817,  25  L.  R.  A.  253. 

Ohio. — Bronson  v.  Oherlin,  41 
Ohio  St.  476,  52  Am.  Rep.  90. 

Oregon. — State  v.  Haines,  35  Oreg. 
379,  58  Pac.  39. 

West  Virginia. — Moundsville  v. 
Fountain,  27   W.   Va.    182. 

Wyoming. — State  v.  City  Council, 
7  Wyo.  417,  52  Pac.  975,  40  L.  R.  A. 
710. 

Term  "  municipal  authorit- 
ies "  construed. — "  The  municipal 
authorities  "  of  a  town  as  the  term  is 
used  in  a  statute  conferring  upon  such 
authorities  of  a  city  or  town  the 
power  to  fix  the  hour  of  closing  sa- 
loons has  been  construed  in  Connecti- 
cut as  meaning  the  selectmen  of  the 
town.  And  where  a  town  embraced  a 
city  and  the  city  had  not  acted  on  the 
subject  a  vote  of  the  selectmen  fixing 


§  134] 


MUNICIPAL   l'OWKKS  AND  PECULATIONS. 


1«1 


board  of  a  city  by  its  charter  to  make  rules  ami  regulations  in  re- 
gard to  the  liquor  traffic  within  the  city  which  rules  and  regula- 
tions when  duly  adopted  and  published  will  have  like  force  and 
effect  as  ordinances  of  the  city  adopted  by  the  city  council.2  And 
a  statute  authorizing  towns  and  cities  to  regulate  and  prohibit  the 
sale  of  intoxicating  liquors  not  prohibited  by  the  state  law  is  not 
invalid  on  the  ground  that  it  conflicts  with  a  prior  law  of  the  state 
declaring  the  sale  of  wine  and  beer  manufactured  in  the  state  to 
be  lawful.  Xor  is  it  unconstitutional  as  being  a  local  or  special 
law.3     And  it  has  been  decided  that  an  ordinance  which  declares 


the  hour  of  closing  was  held  valid  and 
operative  and  applicable  to  the  whole 
town  and  not  merely  that  part  which 
was  outside  the  city  limits.  State  v. 
Hellman,  56  Conn.  190,  14  Atl.  806. 

Delegation  of  exclusive  power. 
— Where  by  statute  power  was  con- 
ferred upon  cities  and  towns  in  the 
following  words:  "The  exclusive 
power  to  make  such  rules  and  regula- 
tions for  the  sale  *  *  *  of  intoxi- 
cating liquors  as  they  may  deem  ad- 
visable "  it  was  held  that  all  the 
inherent  power  in  the  legislature  to 
regulate  the  traffic  was  granted 
thereby  and  that  the  grant  covered  all 
kinds  and  means  of  regulation  and 
restraint  short  of  prohibition  or  sup- 
pression. Baton  Rouge  v.  Butler,  118 
La.  73,  12   So.  050. 

An  election  precinct  not  being  a 
municipal  corporation  is  not  capable 
of  receiving  power  in  reference  to 
regulation  of  traffic  in  intoxicating 
liquors.  Thornton  v.  Territory  of 
Washington,  3  Wash.  T.  482,  17  Pac. 
896. 

A  prohibition  in  a  town  char- 
ter of  the  keeping  in  the  town,  or 
within  a  certain  distance  thereof, 
spirits  or  beer  for  the  purpose  of 
traffic,  prescribing  the  penalty  there- 
for and  the  remedy  for  its  recovery, 


does  not  confer  on  the  town  any 
power  to  enact  an  ordinance  on  the 
subject.  Strauss  v.  Town  of  Pontiac, 
40  111.  301. 

A  contract  made  in  violation 
of  a  municipal  ordinance  which 
forbids  the  sale  of  liquor  without  a 
license  does  not  create  any  right  of 
action  which  will  be  enforced  by  the 
courts.  Miller  v.  Amnion,  145  U.  S. 
421,  12  Sup.  Ct.  884,  36  L.  Ed.  759. 
So  where  the  owner  of  property 
leased  it  with  knowledge  and  inten- 
tion of  the  lessor  that  it  was  to  be 
used  for  saloon  purposes  and  such 
use  was  in  violation  of  the  charter 
and  ordinances  of  the  city  in  that 
the  building  was  within  the  prohib- 
ited distance  from  a  church  it  was 
held  that  the  lease  was  invalid  and 
that  it  being  impossible  to  occupy  the 
premises  for  such  use  there  could  be 
no  recovery  for  rent.  Dunn  v.  Stege- 
man    (Cal.  ('.  A.   1909),  101  Pac  25. 

*■  State  v.  Dudgeon  (Neb.  1909), 
11!)  X.  W.  676;  holding,  however,  that 
a  rule  of  the  e\ris(>  board  of  a  city 
which  imposed  a  tine  in  excess  of  that 
which  the  law  gave  it  authority  to 
impose,  was.  in  so  far  as  it  was  in 
excess  of  the  limit   prescribed,  void. 

3.  State  v.  King,  37  Iowa  402. 


162 


MUNICIPAL  POWERS  AND  REGULATIONS. 


[§   135 


that  any  sales  of  intoxicating  liquors  made  thereafter  by  persons 
who  have  not  complied  with  the  provisions  thereof  shall  be  un- 
lawful is  not  to  be  regarded  as  an  ex  post  facto  law,  though  one 
may  already  have  a  license  to  sell  such  liquors.4 

§  135.  Grants  strictly  construed. 

Grants  to  municipal  corporations  will  be  strictly  construed  so 
as  not  to  invest  in  them  any  right  or  power  not  expressly  or  by 
necessary  implication  conferred  upon  them.  This  is  a  general 
rule  applicable  to  the  exercise  of  powers  by  such  corporations  and 
applies  alike  to  grants  to  them  in  respect  to  the  control,  regula- 
tion, or  prohibition  of  the  liquor  traffic.5     In  determining  the  leg- 


4.  Moore  v.  City  of  Indianapolis, 
120  Ind.  483,  22  N.  E.  424. 

B.  Florida. — Mernaugh  v.  City  of 
Orlando,  41  Fla.  433,  27   So.   34. 

Georgia. — Turner  v.  Mayor  of 
Forsyth,   78   Ga.   683,   3   S.   E.   649. 

Indiana. — Champer  v.  City  of 
Greencastle,  138  Ind.  339,  35  N.  E. 
14,  24  L.  R.  A.  768n,  46  Am.  St.  Rep. 
390. 

Iowa. — City  of  Burlington  v.  Kel- 
lar,   18   Iowa   59. 

Kentucky. — Knifer  v.  City  of  Louis- 
ville, 7   Bush  599. 

Mississippi.  Leonard  v.  City  of 
Canton,   35  Miss.   189. 

Oregon. — Houck  v.  Ashland,  40 
Oreg.  117,  66  Pac.  697. 

Texas.  Craddock  v.  State,  18  Tex. 
App.  567. 

"Where  there  are  both  special 
and  general  grants  of  power  to 
municipal  corporations  to  pass  ordi- 
nances, those  given  under  the  special 
grant,  as  a  general  rule  can  only  be 
exercised  in  the  eases  and  to  the  ex- 
tent as  respects  those  matters  al- 
lowed by  the  charter  or  incorporating 
act;  and  the  powers  given  under  the 
general  grant  do  not  enlarge  or  annul 
those  conferred  by  the  special  grant 
in  respect  to  its  subject  matters,  but 


gives  authority  to  pass  ordinances, 
reasonable  in  their  character  within 
the  scope  of  the  municipal  authority 
not  repugnant  to  the  constitution  and 
laws  of  the  state.  Mernaugh  v.  City 
of  Orlando,  41  Fla.  433,  27  So.  34. 

When  exclusive  power  not  con- 
ferred.— It  has  been  decided  that  ex- 
clusive power  to  regulate,  control  and 
prohibit  the  liquor  traffic  is  not  con- 
ferred upon  a  city  by  a  grant  of  au- 
thority to  close  saloons  on  Sunday, 
and  such  power  can  not  be  exercised 
in  derogation  of  the  general  law.  Ex 
parte  Ginnochio,  30  Tex.  App.  584, 
18  S.  W.  82. 

Ordinance  as  to  having  in 
possession. — Where  a  city  is  by  its 
charter  authorized  to  declare  the  sell- 
ing or  keeping  for  sale  of  intoxicat- 
ing liquors  a  nuisance  it  has  no  au- 
thority to  make  it  an  offense  for  one 
to  have  such  liquors  in  his  posses- 
sion, such  an  ordinance  being  an  in- 
terference with  the  individual's  right 
of  property.  Sullivan  v.  City  of 
Oneida,  61  111.  242. 

So  where  a  city  is  authorized  to 
license  and  regulate  the  sale  of  liquors 
it  can  not  by  ordinance  prohibit  a  per- 
son from  bringing  into  the  city 
either    upon    his    person    or    as    per- 


MUNICIPAL  POWERS  AND  REGULATIONS. 


103 


§   136] 

islativc  intent  so  far  as  the  powers  of  a  municipality  are  con- 
cerned the  entire  charter  may  be  looked  to  in  order  to  determine 
whether  the  power  claimed  may  be  said  to  be  necessarily,  or  by  fair 
implication,  implied  in  or  be  an  incident  to,  the  powers  which  are 
expressly  granted."  And  in  case  of  a  doubt  as  to  the  extent  of  the 
power  which  has  been  conferred  upon  a  municipality  such  doubt 
should  be  determined  in  favor  of  the  public.7 


§  136.  Incidental  or  implied  powers. 

While  a  muncipal  corporation  must  act  within  the  limits  of  its 
delegated  powers  it  may  enact  all  laws  necessary  or  proper  to 
carry  into  effect  a  given  power,8  or  in  other  words  it  may  exercise 
such  incidental  powers  as  are  implied  by,  and  which  are  essential 


sonal  baggage,  intoxicating  liquors  as 
this  amounts  to  prohibiting  one 
from  having  in  his  possession  such 
liquors  which  the  state  itself  cannot 
do,  since  liquor  is  property  of  the 
possession  of  which  a  man  cannot  be 
deprived.  Commonwealth  v.  Cap- 
bell,  (Ky.  1909),  117  S.  W.  3S3. 

6.  Houck  v.  Ashland,  40  Oreg.  117, 
f;6  Pac.  697,  so  holding  in  reaching 
the  conclusion  that  a  city  had  the 
power  to  license  the  sale  of  intoxi- 
cating    liquors. 

7.  Ex  parte  Simms,  40  Fla.  432, 
25  So.  280. 

8.  Ex   parte   Burnett,   30  Ala.  461. 
Where  an  express  power  is  granted 

by  statute  to  a  municipal  corpora- 
tion there  is  also  impliedly  granted 
the  power  to  carry  it  into  effect. 
City  of  Portland  v.  Schmidt,  13  Oreg. 
17,   6   Pac.  221. 

General  welfare  clause. — It 
would  seem  that  under  the  general 
welfare  clause  in  a  city  charter  the 
city  may  prohibit  the  keeping  for  any 
purpose  whatever  of  any  intoxicating 
liquor  in  any  refreshment  saloon  or 
restaurant  where  such  ordinance  does 


not  conflict  with  the  laws  of  the  state. 
State  v.  Clark,  28  N.  II.  170,  61 
Am.  Dec.  611,  holding  that  keeping 
liquor  in  a  cellar,  under  a  refresh- 
ment saloon  or  restuarant  violated 
the  ordinance. 

And  a  provision  in  the  charter  of 
a  town  authorizing  its  trustees  to 
pass  ordinances  "  for  preservation  of 
good  order,  decorum  and  decency 
within  its  limits "  and  to  prescribe 
penalties  for  the  violation  of  said 
ordinances  will  authorize  an  ordi- 
nance prescribing  a  penalty  for  the 
sale  of  whisky  in  the  town,  if  the  sale 
of  whisky  in  the  county  of  which  the 
town  is  apart  is  forbidden  by  state 
laws.  Fortner  v.  Duncan,  ill  Ky. 
171,  15  S.  W.  55,  11  L.  R.  A.  1SS. 

And  power  conferred  noon  a  munic- 
ipality to  j>;i>s  laws  and  ordinances 
for  the  suppression  of  offenses  against 
public  morality  and  decency  lias  I 
held  to  authorize  it  to  prohibit  by 
ordinance  the  sale  of  spirituous  liq- 
uors within  its  corporate  limits. 
Russellville  Ex  parte,  in  re  Hurley, 
95  Ala.  lit.  11   So.  ]S. 

Of   course,   however,   under   such   a 


1(34  MUNICIPAL  POWEKS  AND  REGULATIONS.  [§    137 

to  accomplish  the  purposes  of,  its  creation.9  But  the  incidental 
powers  possessed  by  municipal  corporations  will  not  be  enlarged 
by  construction  to  the  detriment  of  individual  or  public  rights.10 
And  where  the  grant  of  power  is  not  clear  courts  will  not  give  a 
forced  construction  to  a  statute,  which  is  justified  only  by  a 
necessity  which  does  not  exist  in  order  to  construe  a  statute  as 
conferring  a  claimed  power  to  pass  an  ordinance.11 

§  137.  Same  subject— power  to  suppress,  regulate  or  restrain. 

Power  to  suppress,  regulate  and  restrain  embraces  the  authority 
to  adopt  the  usual  means  employed  for  such  purpose  and  the 
mere  adoption  of  an  ordinance  which  declares  that  liquor  shall  not 
be  sold  but  which  imposes  no  penalty  for  its  non-observance  does 
not  tend  in  the  slightest  degree  to  accomplish  the  end  sought.12 
So  where  the  legislature  has  in  express  terms  conferred  upon 
municipalities  power  to  pass  and  enforce  ordinances  for  the  regu- 
lation and  sale  of  intoxicating  liquors,  therein  prescribing  what 
shall  constitute  the  penalty  for  the  violation  thereof,  an  ordinance 
of  a  city  passed  for  the  regulation  and  sale  of  intoxicating  liquors, 
failing  to  prescribe  the  penalties  within  the  limits  fixed  by  the 
legislature  is  void  and  cannot  be  enforced.13 


sale  the  power  to  prohibit  could  not  whether  or  not  the  city  will  wholly 

be    exercised   unless    it    were   consist-  prohibit  its  sale,  or  license  and  regu- 

ent  with  the  law  of  the  state.  late  the  traffic.     Schwuckow  v.  City 

Under     authority     given     to     a  of  Chicago,   68   111.   444. 

town    to    prevent    and    restrain  9«  Champer  v.  City  of  Greencastle, 

drunkenness   the   giving   of   intoxi-  138  Ind.  339,  35  N.  E.  14,  24  L.  R.  A. 

eating   liquors   to   one   who   is   a   ha-  768n,   46  Am.   St.  Rep.   390. 

bitual    drunkard   or   in   the   habit   of  10.  Harris  v.  Intendant  and  Coun- 

becoming    intoxicated    may    be    pro-  cil  of  Livingston,  28  Ala.  577. 

hibited.      Woods    v.    Town    of    Pine-  11*  Commonwealth  v.   Voorhies,   12 

ville,  in  Oreg.  108,  23  Pac.  880.  B.  Mon.    (Ky.)    361. 

Where  the  legislature  confers  12.  City  of  Pekin  v.  Swelzel,  21  111. 

the  power  to   suppress   groceries  464,  74  Am.  Dec.   105. 

where   liquor  is   sold,  or  to  regu-  13.  Assaria  v.  Wells,  68  Kan.  787, 

late,  license  and  rest  ruin  the  same,  it  75  Pac.  1026. 
is     a     matter     purely     discretionary 


§    138]  MUNICIPAL  POWERS  AND  REGULATIONS.  1(55 

§  138.  Power  of  city  to  prohibit. 

Legislation  by  municipal  corporations  must  be  within  the  scope 
of  the  powers  conferred  upon  them  and  they  have  no  power  to 
pass  an  ordinance  making  a  general  prohibition  against  the  sale 
of  intoxicating  liquors  unless  such  power  has  been  granted  them 
by  the  state.14     So  power  conferred  upon  a  city  to  prohibit  the 


14. — Arkansas. — Tuck  v.  Town  <>f 
Waldron,   31   Ark.  402. 

Florida.  Mernaugh  v.  City  of  Or- 
lando, 41  Fla.  433,  27   So.   34. 

Indiana.  Sweet  v.  City  of  Wabash, 
41   Ind.  7. 

Louisiana. — State  v.  Harper,  42 
La.  Ann.  312,  7  So.  446;  followed  in 
Police  Jury  v.  Harper,  42  La.  Ann. 
776,  7  So.  716. 

New  Jersey.— Rossell  v.  Garon,  50 
N.  J.  L.  358,  13  Atl.  26. 

Oregon. — City  of  Portland  v. 
Schmidt,   13   Oreg.   17,  6  Pac.  221. 

Utah. — Logan  City  v.  Buck,  3  Utah 
301,  2  Pac.  706,  followed  in  Logan 
City  v.  Puck,  3  Utah  307,  5  Pac.  564. 

A  dispensary  law  was  held  in 
South  Carolina  not  to  prevent  the 
passage  of  an  ordinance  by  a  city 
prohibiting  ''he  sale  of  intoxicating 
liquors,  whore  such  power  was  given 
to  the  city  by  its  charter.  Florence 
v.  Brown,  49  S.  C.  332,  26  S.  E.  880, 
27  S.  E.  273. 

Where  a  city  in  pursuance  of  a 
power  in  its  charter  adopts  an  ordi- 
nance prohibiting  the  sale  of  any  in- 
toxicating liquors  within  its  limits, 
if  sales  are  made  of  such  liquors  in 
the  city  for  a  lawful  purpose,  the 
burden  is  upon  the  seller  to  prove 
such  fact.  Gunnarssohn  v.  City  of 
Sterling,  92  111.  569.  See  also  Ear- 
baugh  v.  City  of  Monmouth,  74  111. 
367. 

It  is  not  necessary  that  a  pro- 
hibition should  be  a  total  one 
where  power  is  given  to  "  license, 
regulate  ami  prohibit,"  but  the  prohi- 


bition may  be  partial  as  for  instance 
against  sales  which  are  not  author- 
ized by  law.  ennehy  v.  City  of  Chi- 
cago, 120  111.  627,  12  N.  E.  227. 

Where  a  city  is  authorized  by  its 
charter  "  to  license,  regulate,  prohibit 
or  restrain  houses  or  places  for  the 
selling  or  giving  away  of  wines  or 
other  liquors,  whether  ardent,  vinous 
or  fermented  "  it  has  power  to  pass 
an  ordinance  prohibiting  the  sale  of 
liquor  as  a  beverage  by  druggists  and 
limiting  the  right  of  sale  to  medicinal 
purposes.  Provo  City  v.  Churtliff,  4 
Utah,   15,  5  Pac.   302. 

In  Colorado  it  has  been  decided  that 
it  is  within  the  power  of  an  incor- 
porated town  to  forbid  the  giving 
away  of  intoxicating  liquor.  Litch 
v.  The  People,  19  Colo.  App.  421,  75 
Pac.   1079. 

In  California  it  is  decided  that 
under  a  constitutional  provision  con- 
ferring power  upon  towns  to  enforce 
police  regulations  within  their  limits 
which  do  not  conflict  with  the  general 
laws,  an  ordinance  is  valid  which 
prohibits  the  alcoholic  traffic.  Ex 
parte  Mogcnsen  (Cal.  C.  A.  1907), 
90  Pac.    1063. 

Ordinance  not  interference 
with  interstate  commerce. — An 
ordinance  which  prohibits  t  lie  sale  of 
intoxicating  liquors,  -'at  wholesale  or 
retail  in  connection  with  dnii_rs  or  in 
drug  stoics"  is  not  an  interference 
witli  interstate  commerce.  Jacobs 
Pharmacy  Co.  v.  City  of  Atlanta,  89 
Fed.  244. 


l$Q  MUNICIPAL  POWERS  AND  REGULATIONS.  [§    139 

sale  of  liquors  within  the  corporate  limits  by  any  person  "  without 
having  secured  a  license  "  therefor  does  not  authorize  the  passage 
of  an  ordinance  making  an  absolute  prohibition  upon  the  sale  of 
liquor.15  And  the  placing  by  the  state  of  an  occupation  tax  or 
license  fee  upon  a  particular  business,  such  as  the  liquor  traffic, 
or  the  sale  of  "  near  beer  "  evinces  such  a  legislative  policy  as 
will  preclude  a  municipality  in  the  absence  of  an  express  delega- 
tion of  authority  from  prohibiting  such  business  or  traffic  though 
it  may  pass  reasonable  regulations,  even  under  the  general  wel- 
fare clause,  in  respect  thereto.16  So,  where  the  state  by  the  im- 
position of  a  license  fee  recognizes  the  existence  of  clubs  and  their 
right  to  keep  liquors  for  the  use  of  their  members  a  city  has  no 
right  to  pass  an  ordinance  prohibiting  the  assembling  of  such 
liquors  in  a  bona  fide  club  where  the  tax  or  license  fee  imposed 
by  the  state  has  been  paid.17  In  this  connection  it  has  been 
decided  that  a  constitutional  provision  that  the  general  assembly 
shall  not  have  power  to  authorize  a  municipal  corporation  to 
pass  any  laws  inconsistent  with  the  general  laws  of  the  state,  does 
not  limit  the  grant  of  police  powers  to  such  corporation,  nor  in- 
hibit a  grant  of  the  power  to  prohibit  the  sale  of  spirituous 
liquors,  though  the  general  statutes  only  license  and  regulate  the 
traffic.18 

§  139.  Grant  of  power  to  regulate,  restrain  or  license. 

Power  is  frequently  conferred  by  the  legislature  upon  a  city 
to  control,  regulate  or  restrain  the  liquor  traffic  within  the  cor- 
porate limits.  In  some  cases  under  the  grant  of  the  power  to 
regulate  or  restrain  the  right   to  prohibit  has  been  claimed  to 


15.  Brownrigg     v.     Town     Council  S.   E.  807;   Miller  v.  Shropshire,   124 

of    Livingston,    120    Ala.    93,    28    So.  Ga.  829,  59  S.  E.  335. 
616>  17.  Wright  v.  Mayor,    (Ga.  1909), 

10.  Campbell    v.    City    of    Thomas-  64  S.  E.  807. 
ville    (Ga.    L9  9),   04   S.   E.   815;    See  Is-  Ex    parte   Cowert,   92   Ala.   94, 

Wright  v.  Mayor   (Ga.  1909),  64  9   So.  225. 


§  139] 


MUNICIPAL  POWERS  AND  REGULATIONS. 


KIT 


exist.  As  a  general  rule,  however,  it  would  seem  that  such  words 
confer  no  authority  upon  the  municipal  authorities  to  absolutely 
prohibit  such  traffic,  but  that  if  such  power  exists  it  must  be  by 
virtue  of  express  authority  to  so  act.  This  is  only  an  application 
of  the  rule  that  the  grant  of  power  to  such  corporations  is  to  be 
strictly  construed,  and  even  without  going  to  the  extent  of  strict 
construction  it  would  certainly  be  giving  an  elastic  construction 
to  the  words  "  regulate  "  or  "  restrain  "  to  hold  that  they  also 
mean  to  "  prohibit."  19  So  it  is  said  that  the  terms  "  regulate  " 
and  "  restrain  "  as  used  in  a  statute  delegating  power  to  a  muni- 
cipality are  construed  as  not  including  the  power  to  prohibit,  but 
rather  as  contemplating  the  existence  and  continuance  of  places 
for  the  sale  of  liquor  and  to  restrict  the  city  to  reasonable  regula- 
tions and  restraints  in  such  business.20  And  power  merely  to 
exact  a  license  fee  should  likewise  confer  no  authority  to 
prohibit.21     And  under  this  general  power  to  license,   regulate 


l».  State  v.  Dannenberg  (N.  C. 
1909),  63  S.  E.  946;  Brousou  v.  Ober- 
lin,  41  Ohio  St.  476,  52  Am.  Rep.  90. 

In  California  it  is  said  to  be  the 
declared  law  of  that  state  "  that  the 
governing  power  of  the  county  or 
municipality  may  prohibit  the  manu- 
facture or  sale  of  intoxicating  liq- 
uors altogether,  or  that  such  county 
or  municipality  may  impose  such  con- 
ditions upon  the  sale  of  such  liquors 
as  it  pleases."  Denton  v.  Vann 
(Cal.  App.  1908),  97  Pac.  675. 

In  a  case  in  Alabama,  however,  it 
is  decided  that  a  municipal  corpora- 
tion incorporated  under  the  general 
statute  authorizing  the  corporate  au- 
thorities to  license,  tax,  regulate  and 
restrain  the  sale  of  Buch  liquors  has 
authority  to  prohibit  the  sale  of  liq- 
uor in  its  corporate  limits  it  being 
declared  that  the  word  restrain  as 
used  in  this  connection  is  the  legal 
equivalent    of    the    verb    to    prohibit. 


Smith  v.  Town  of  Warrior,  99  Ala. 
481,    12    So.    418. 

Under  full  power  given  to  a 
city  to  regulate  the  wholesale 
and  retail  traffic  in  intoxicating 
liquor  it  may  by  ordinance  prohibit 
the  sale  of  liquors  "  at  wholesale  or 
retail  in  connection  with  drugs  or  in 
drug  stores."  Jacobs  Pharmacy  Co. 
v.  City  of  Atlanta,  89  Fed.  244. 

20.  Mernaugh  v.  City  of  Orlando, 
41  Fla.  433,  27  So.  34. 

The  words  "  restrain  "  in  a  statute 
giving  a  city  power  "to  license,  tax, 
regulate  and  restrain  "  the  liquor  traf- 
fic is  to  be  taken  in  its  ordinary  mean- 
ing that  is  to  abridge,  confine,  keep 
in,  hold  in  and  the  like  and  is  not 
to  be  construed  as  giving  power  to  the 
city  to  prohibit  such  traffic.  Ensley 
v.  State  (I nd.  S.  ('.  1909),  88  N.  E. 
62.  Compare  Vinson  v.  Town  of 
Monticello,  US  Ind.  103,  19  N.  E. 
734. 


16S  MUNICIPAL  POWERS  AND  EEGULATIONS.  [§    140 

and  prohibit,  a  city  has  no  power  to  pass  an  ordinance  prohibiting 
the  sale  of  such  liquors  or  the  exposing  of  them  for  sale,  in  any 
place  of  business  in  the  city  where  any  dry  goods,  clothing, 
jewelry,  or  hardware  are  kept  or  exposed  for  sale.  Such  an 
ordinance  is  declared  not  to  be  based  upon  any  ground  of  police 
regulation  but  directed  solely  against  sale  by  certain  persons  in  ■ 
their  places  of  business.  The  court  said  that  the  ordinance  per- 
mitted other  dealers  in  merchandise,  except  those  mentioned,  to 
sell  liquor  from  their  stores,  and  that  the  restriction  was  purely 
arbitrary,  having  no  connection  with  and  not  tending  in  any  way 
toward  the  protection  of  the  public  against  the  evils  arising 
from  the  sale  of  intoxicating  liquor,  the  liquor  being  sold  only 
in  packages  and  not  for  consumption  at  place  sold.22 

§  140.  Prohibiting  keeping  for  unlawful  sale. 

A  city,  under  the  general  welfare  clause  of  its  charter,  may  law- 
fully adopt  an  ordinance  making  penal  the  storing,  or  keeping,  for 
unlawful  purpose,  of  any  article  the  sale  of  which,  under  such  cir- 
cumstances, is  contrary  to  a  state  statute.23  So  it  has  been 
decided  that  a  city  may  forbid  the  keeping  of  intoxicating  liquors 
for  illegal  sale,  it  being  declared  the  illegal  sale  of  anything  may 
be  prohibited  no  matter  what  protections  and  restrictions  are 
thrown  around  it  by  the  general  law  of  the  state.24  And  it  has 
been  decided  that  so  long  as  the  owner  of  liquors  retains  posses- 
sion of  them,  intending  to  deliver  them,  on  an  unlawful  contract  of 
sale,  such  possession  is  within  a  municipal  ordinance  which 
prohibits  the  keeping  of  such  liquors  for  unlawful  sale.25 

21.  Hill  v.  Commissioners  of  De-  32  S.  E.  363;  Rooney  v.  Augusta,  117 
catur,  22  Ga.  203.  Ga.  709,  45  S.  E.  72 ;  See  also  Reese  v. 

22.  City  of  Chicago  v.  Netcher,  183  City  of  Newnan,  120  Ga.  198,  47 
111.    104,   55  N.   E.   707,  48   L.   R.   A.  S.   E.   500. 

261n,  75  Am.  St.  Rep.  93.  24.  Osburn  v.  Marietta,  118  Ga.  53, 

23.  Robinson  v.  Americus,  121  Ga.       44  S.  E.  807. 

180,  45  S.  E.  924;  citing  Paulk  v.  Sy-  25.  Menken  v.  City  of  Atlanta,  78 

eamore,    104  Ga.   728,   30   S.   E.  417;       Ga.  668,  2  S.  E.  559. 
Papworth  v.  Fitzgerald,  106  Ga.  378, 


§§    141,142]    MUNICIPAL   POWEBS  AND  REGULATIONS.  ],;;, 

§  141.  Ordinances  should  be  general. 

Ordinances  should  be  general  in  their  terms  and  operation. 
They  should  not  render  it  possible  for  persona  engaged  in  busi- 
ness in  a  public  place  to  carry  it  on,  while  prohibiting  othi  rs, 
who  come  in  afterward,  from  carrying  on  similar  business.  This 
principle  has  been  applied  to  ordinances  regulating  or  restrain- 
ing the  sale  of  intoxicating  liquors.26 

§  142.  Ordinances  must  be  reasonable. 

A  city  ordinance  passed  under  an  implied  power  or  under  a 
general  grant  of  power,  is  not  valid  unless  it  is  reasonable  and 
within  the  power  conferred  either  by  express  statute  or  by  neces- 
sary implication.27  The  presumption,  however,  is  in  favor  of 
their  validity,  and  it  is  incumbent  upon  any  one  who  seeks  to 
have  them  set  aside  as  unreasonable  to  point  out  or  show  affirm- 
atively wherein  such  unreasonableness  consists.28  And  courts 
have  no  power  to  declare  an  ordinance  void  on  the  ground  that  it 
is  unreasonable  unless  its  unreasonableness  is  so  clear,  manifest 
and  undoubted  as  to  amount  to  a  mere  arbitrary  exercise  of  the 
power  vested  in  the  legislative  body.29 


36.  Town    of   Mandeville   v.    Band,  When  the  question  as  to  the  reas- 

111  La.  806,  35  So.  915.  onableness  of  a  municipal   by-law  or 

27.  People  v.  Cregier,  138  111.  401,  city  ordinance  is  raised  and  it  ha3 
28  N.  E.  812;  Ensley  v.  State,  (Ind.  reference  to  a  subject  matter  within 
1909),  88  N.  E.  62  j  Champer  v.  City  the  corporate  jurisdiction  it  will  be 
of  Greencastle,  138  Ind.  339,  35  N.  E.  presumed  to  be  reasonable  unless  the 
14,  24  L.  R.  A.  768n.  46  Am.  St.  Rep.  contrary  appears  on  the  face  of  the 
390.  law  itself  or  is  established  by  proper 

Ordinance     as     to     chairs     and  evidence."     Van    Hook  v.   City  of   Se 

seats. — It  has  been  held  a  reasonable  lina.    70    Ala.    361,   4f>   Am.    Rep.    85 

provision    to    pro-vide    by    ordinance  Per      Somervillc.      J.,      citing      Obm 

that     no     chairs     or     seat-,     of     any  monwealth      v.      Patch,      97      M;i<s 

kind   shall   be  placed   in  any  saloon.  221  :    st.    Louis    v.    Weber,    44    Mo 

Brown  v.  Lutz,  86  Neb.  527,  54  X.  W.  550. 

860.  •-::>.  State   v.    Barge,   82  Minn.  256, 

28.  People  v.  Cregier,  138  111.  401,  84  X.  W.  1116. 
28  N.  E.  812. 


170  MUNICIPAL  POWERS  AND  REGULATIONS.   [§§    143,144,145 

§  143.  Where  title  of  ordinance  contains  surplusage. 

Where  there  is  only  one  subject  contained  in  the  body  of  an 
ordinance,  which  is  clearly  expressed  in  its  title,  the  fact  that 
such  title  may  contain  surplusage  will  not  render  the  ordinance 
obnoxious  to  the  limitation  providing  that  it  shall  not  contain 
more  than  one  subject,  which  shall  be  clearly  expressed  in  the 
title.30 

§  144.  Ordinances  having  extra-territorial  effect. 

The  legislature  may  confer  jurisdiction  upon  a  municipal  cor- 
poration not  only  to  regulate  and  require  a  license  of  all  keepers 
of  places  within  its  corporate  limits  but  also  may  designate  limits 
beyond  its  corporate  limits  over  which  such  ju"  !«diction  may 
extend.31  But  in  the  absence  of  power  conferred  by  the  legis- 
lature a  town  cannot  give  its  ordinances  an  extra-territorial 
effect.32 

§  145.  Ordinances  should  conform  to  law  of  state. 

Ordinances  must  be  subordinate  to  and  harmonize  with  the 
general  law  of  the  state  unless  special  powers  are  conferred  upon 
the  municipality  by  its  charter.33  A  municipal  corporation  in 
exercising  any  power  in  respect  to  the  intoxicating  liquor  traffic 
must  not  act  in  excess  of  the  authority  delegated  to  it.34     So  it  may 


30.  In    re    Thomas,    Petitioner,    53  purposes  beyond  the  corporate  limits. 
Kan.  659,  37  Pac.  171.  32.  Strauss  v.  Town  of  Pontiac,  40 

31.  Lutz  v.  City  of  Crawfordsville,  111.   301. 

109  Ind.  466,  10  N.  E.  411,  sustaining  33.  State  v.  Brittain,  89  N.  C.  574. 

a  statute  conferring  jurisdiction  two  34.  Alabama. — Norris    v.    Town    of 

miles   beyond   such    limits.      See   also  Oakman,   138   Ala.  411,   35   So.  450. 

Van  Hook  v.  City  of  Selina,  70  Ala.  Georgia. — City     of     Barnesville     v. 

361,  45  Am.  Rep.  85,  citing  Chicago  Murphey,   113  Ga.  779,  39  S.  E.  413. 

Co.   v.    Chicago,   88    111.   221,   holding  Indiana.     Carr  v.  Town  of  Fowler, 

that  the  legislature  may  pass  an  act  74   Ind.   590. 

extending,  for  police  purposes  merely,  Massachusetts. — Commonwealth      v. 

the  limits  of  a  municipality,  and  con-  Turner,  1  Cush.  493. 

ferring  power  on  tlio  city  authorities  Missouri. — State    v.    Schweickardt, 

to    pass    by-laws    operating    for    such  109  Mo.  496,   19  S.  W.  47. 


14G] 


MI'NM  IIWI.    I'OWKKS   AM)   KECil'LATIONS. 


171 


be  stated  generally  that  where  the  statute  of  a  state  conflicts  with 
the  ordinance  of  a  municipal  corporation  the  former  controls;  and 
where  a  municipality  departs  from  or  exceeds  the  power  conferred 
upon  it,  an  ordinance  so  passed  is  void.86  Bu1  though  the  traffic  is 
rcognized  by  the  state  by  its  imposing  a  license  fee  or  tax  the  city 
may  under  the  general  welfare  clause  pass  regulations,  not  pro- 
hibitory in  character,  in  respect  thereto.38 

§  146.  Same  subject — application  of  rule. 

Where  by  statute  a  city  is  authorized  to  prevent  the  "  selling 
or  giving  away  "  of  intoxicating  liquors,  an  ordinance  is  in  excess 
of  the  power  conferred  which  makes  it  unlawful  to  sell,  give 
away,  "  furnish  or  cause  to  be  furnished  or  delivered  "  any  such 
liquors.37  And  a  city  incorporated  under  the  general  law  of  the 
state  which  authorizes  it  "  to  regulate  or  prohibit  the  sale  of  in- 
toxicating liquors  not  prohibited  by  the  laws  of  this  state,"  has 


New  Jersey. — Featherstone  v.  Lam- 
bertville,  50  N.  J.  L.  507,  14  Atl. 
599. 

North  Carolina. — State  v.  Brittain, 
89  N.  C.  574. 

Wisconsin. — Glentz  v.  State,  38 
Wis.   549. 

An  ordinance  of  a  munici- 
pal corporation  must  conform 
strictly  to  the  provisions  of  the 
statute  giving  the  power  to  pass  the 
ordinance  in  question,  or  its  proceed- 
ings will  be  void.  ELniper  v.  City  of 
Louisville,    7    Mush    I  Ky. )    599. 

Ordinance  incorporating  pro- 
visions of  statute. — Where  a  city 
which  is  authorized  to  prohibit  and 
punish  any  act,  matter  or  thing  which 
by  the  laws  of  the  state  is  made  a 
misdemeanor  and  to  prescribe  pen- 
alties for  violating  any  city  ordinance 
not  exceed  ing  the  penalties  prescribed 
for  similar  offenses  againsl  the  state 
laws  incorporates  into  its  laws  and 
ordinances   the    statutes   of   the   state 


prohibiting  the  sale  of  liquors  by  the 
"  blind  tiger  ",  the  action  of  the  city 
council  in  so  doing  makes  such  pro- 
visions valid  ordinances  of  the  city. 
City  of  Searcy  v.  Turner,  (Ark. 
1908),  114  S.  W.  472. 

tt5».  Georgia. — Adams  v.  Mayor  of 
Albany,  29  Ga.  5G. 

Iowa.  City  of  Burlington  v.  Kel- 
lar,  18  Iowa  59. 

Kansas. — City  of  Eureka  v.  Davis. 
21  Kan.  578. 

Mississippi. — House  v.  State,  41 
Miss.  :i7. 

Xtic  York. — Wood  v.  City  of  Brook- 
lyn.  14  Barb.    (N.  V.)    425. 

Ohio. — Thompson  v.  City  of  Mount 
Vernon,  11   Ohio  St.  688. 

:»:.  Campbell  \.  City  of  Thomas- 
ville.  (Ga.  1909),  64  S.  E.  815,  so 
holding  as  to  the  trathc  in  "  near 
beer." 

37.  Norris  v.  Town  of  Oakman,  138 
Ala.  411,  35  So.  450. 


172  MUNICIPAL  POWEPS  AND  PECULATIONS.  [§    146 

no  power  to  pass  an  ordinance  authorizing  the  forfeiture  or 
destruction  of  liquors  kept  for  sale  in  violation  of  an  ordinance 
of  the  city.3S  And  a  statute  authorizing  villages  to  suppress 
saloons  for  the  sale  of  intoxicating  liquors  confers  no  authority 
to  enlarge  the  commonly  understood  meaning  of  the  word 
"  saloon  "  by  declaring  that  any  person  selling  liquor  within  the 
village  shall  be  deemed  to  be  a  saloon  keeper.39  So  power  given 
to  prohibit  tippling  houses  and  dram  shops  does  not  authorize  the 
passage  of  an  ordinance  forbidding  the  sale  of  spirits  and  beer 
in  any  quantity  or  for  any  purpose,  except  by  persons  authorized 
to  sell  for  medicinal,  mechanical  or  manufacturing  purposes.40 
iSTor  does  authority  conferred  upon  a  town  to  license,  regulate 
and  prohibit  inns  and  taverns  embrace  authority  to  regulate  the 
sale  of  liquors  outside  of  inns  and  taverns.41  And  the  general 
welfare  clause  does  not  authorize  the  passage  of  an  ordinance 
making  it  penal  for  one  who  has  lawfully  purchased,  without 
the  limits  of  the  municipality,  alcoholic  liquors,  to  receive  the 
same  therein  without  paying  a  specific  tax  of  a  given  amount  for 
the  privilege  of  so  doing.42  Again  where  by  the  constitution  of  a 
state  the  monies  received  from  liquor  licenses  are  to  be  devoted 
to  a  certain  purpose,  any  city  charter  or  other  enactment  which 
attempts  to  devote  them  to  any  other  object  is  unconstitutional 

38.  Henke  v.  McCord,  55  Iowa  378,  municipality.  The  court  said:  "The 
7  X.  W.  023.  policy  of  a  state  is  to  be  ascertained 

39.  Village  of  Sparta  v.  Brown,  fr°m  its  published  statutes  and  laws. 
129  Mid,.  555,  89  N.  W.  435,  90  N.  W.  There  never  having  been  in  force  any 
ggj  law    making    penal    the    purchase    of 

._    _,  „  ,  „     ,.         .A       intoxicating  liquors  within  this  state, 

40.  Strauss  v.  Town  of  Pontiac,  40  .  .  ,     ,         . ,  ^    ,         ,_       i 

...  it  may  far'y  be  said  that  such  a  law 

would  be  a  departure  from  its  settled 

41.  State  v.  Fay.  44  N.  J.  L.  474.  pubHc  po]icy;   and  any  guch   depart. 

42.  Benderson  v.  Heyward,  109  Ga.  ure  must  commence  with  the  general 
373,  34  S.  E.  590,  47  L.  R.  A.  36G,  assembly  itself,  either  by  a  direct  law 
77  Am.  St.  Pep.  384,  holding  that  to  tllj„  ^^i,  or  by  granting  to  some 
the  above  is  true  notwithstanding  the  subordinate  public  corporation  of  the 
sale  of  such  liquors  is  absolutely  state  express  authority  to  make  such 
prohibited   within   the  limits   of  such  a  departure."     Per  Cobb,  J. 


§§    117,  IIS]      MUNICIPAL  POWERS  AND  BEGULATIONS.  17;; 

and  void.43  So  a  village  ordinance  making  unlawful  the  sale  of 
liquors  without  a  license,  passed  under  the  authority  of  a  charter 
adopted  at  the  time  when  the  constitution  forbade  the  enactment 
of  license  laws  is  held  to  be  void.11  And  any  ordinance  or  law 
which  authorizes  the  authorities  of  a  town  to  close  a  saloon  by 
force,  without  having  it  first  judicially  d<  dared  a  nuisance,  and 
ordered  to  be  abated,  is  held  to  be  unconstitutional.45 

§  147.  Same  subject — engaging  in  liquor  traffic. 

Neither  the  general  welfare  clause  usually  found  in  city 
charters  nor  the  power  to  license  and  regulate  saloons  authorizes 
a  city  to  engage  in  the  liquor  traffic.46  So  power  given  to  a  munic- 
ipal corporation  to  control  and  direct  the  sale  of  liquors  within 
its  limits  confers  no  authority  upon  it  to  create  a  dispensary 
and  authorize  commissioners  appointed  to  manage  the  same  to 
sell  liquors  under  the  terms  and  conditions  prescribed  in  the 
ordinance  conferring  the  power.47 

§  148.  Same  subject — Ordinance  providing  for  fine  or  punish- 
ment 
Where  a  statute  directs  what  punishment  all  city  ordinances 
shall  impose  for  their  violation,  the  city  in  exercising  its  au- 
thority must  comply  with  the  provisions  of  such  act  and  an  or- 
dinance is  void  which  provides  a  less  punishment  than  is  pre- 

43.  Yazoo  City  v.  State,  48  Miss.  47.  Lofton  v.  Collins,  117  Ga.  434, 
440.  43  S.  E.  70S,  61   L.  R.  A.   150.     The 

44.  Village  of  Mount  Pleasant  v.  court  said:  "  We  think  it  was  not  the 
Vansice,  4:?  Mich.  361,  5  N.  W.  378,  intention  of  the  legislature,  by  giving 
38  Am.  Rep.  193,  holding  also  that  the  mayor  or  aldermen  the  exclusive 
the  subsequent  repeal  of  the  consti-  right  to  control  and  direct  the  sale 
tutional  amendment  did  not  make  it  of  liquors,  to  authorize  their  sale  in  a 
valid.  See  also  Dewar  v.  People,  40  dispensary  of  this  kind.  *  *  *  A 
Mich.  401.  29  Am.  Rep.  545.  grant  of  power  to  a  municipal  corpo- 

45.  Baldwin  v.  Smith,  82  111.  102.  ration  must  be  construed  strictly,  and 

46.  Mayor  of  Leesburg  v.  Putnam,  such  a  corporation  can  exercise  no 
103  Ga.  110.  29  S.  E.  G02.  68  Am.  powers  except  such  as  are  expressly 
St.   Rep.   80.  given  or  are  necessarily  implied  from 


j-4  MUNICIPAL  POWERS  AND  REGULATIONS.  [§    149 

scribed  in  the  statute.48  Where,  however,  a  statute  directs  what 
imprisonment  all  ordinances  shall  impose  for  their  violation  but 
does  not  specify  whether  the  imprisonment  shall  be  in  the  jail  of 
the  county  or  the  city  prison,  the  city  may  by  ordinance  provide 
that  offenders  shall  be  committed  to  the  city  prison  and  such  ordi- 
nance is  not  subject  to  an  objection  that  because  city  prisons  are 
not  uniform  throughout  the  state  in  respect  to  the  conditions  affect- 
ing the  comfort  and  health  the  punishment  would  be  unequal 
and  would  amount  to  a  milder  degree  of  punishment  in  one  than 
in  another.49  And  there  being  no  constitutional  provision  grant- 
ing to  offenders  the  right  to  liquidate  or  discharge  their  violations 
of  law  by  a  fine  instead  of  imprisonment,  or  giving  them  an 
option  in  respect  to  the  method  of  punishment,  an  ordinance 
was  held  not  to  be  invalid  because  it  permitted  a  municipal  court 
to  impose  a  sentence  of  imprisonment  without  the  option  of  pay- 
ing a  fine  or  providing  for  a  jury  trial  in  the  case  of  one  accused 
of  its  violation.50 

§  149.  As  to  powers  of  municipal  officers. 

The  power  to  act  can  only  be  exercised  by  the  officials  or 
boards  in  whom  the  power  is  vested  in  accordance  with  the  manner 
prescribed.51  So  it  has  been  declared  that  where  power  is  con- 
ferred upon  a  municipal  corporation  to  regulate  any  calling  or 
business,  it  is  so  done  with  the  intention  that  such  power  shall  be 
exercised  by  the  corporation  and  in  the  mode  prescribed,  and  it 
is  not  warranted  in  delegating  a  discretionary  power  to  others 
or  to  an  individual.52      And  the  common  council   of  a  city   in 

express  grants  of  other  powers.     No  50.  State  v.  Collins    (Minn.  1909), 

power  to  establish  a  dispensary  was  120  N.  W.  1081. 

here   expressly   given,    and   we   think  51.  Wilson  v.  Whelan,  91  Ga.  4G1, 

that   none   was   necessarily    implied."  17   S.   E.  90G ;   Featherstone  v.   Lam- 

Per  Simmons,  C.  J.  bertville,  50  N.  J.  L.  507,  14Atl.  599; 

48.  In  re  Van  Tuyl,  71  Kans.  659,  Glentz   v.   State,   38   Wis.   54!). 

81  Pac.  181.  52>  City  of  East  St.  Louis  v.  Weh- 

49.  City    of    Wichita    v.    Murphy,       rung,  50  111.  28. 

(Kans.    1908),    99    Pac.    272.  Powers    to    common    council.— 


§   150] 


MUNICIPAL  POWERS  AND  REGULATIONS. 


175 


exercising  the  powers  conferred  upon  it  to  restrain,  control  and 
regulate  this  traffic  and  to  pass  the  appropriate  ordinance,  is 
clothed  with  discretionary  powers,  the  exercise  of  which  the 
courts  cannot  control.53 

§  150.  General  law  as  repealing  municipal  powers  and  ordinances. 
A  general  law  will  not  operate  to  repeal  by  implication  a  munic- 
ipal ordinance  on  the  subject,  or  the  charter  power  of  a  muni- 
vipality  to  enact  ordinances  not  inconsistent  with  the  general  law 
where  such  intention  is  not  manifest.  And  the  principle  of  courts 
not  favoring  repeal  by  implication  is  said  to  have  peculiar  force  in 
such  a  case  where  the  laws,  the  implied  repeal  of  which  one  is  in 
question  were  special  laws  enacted  to  meet  the  needs  of  particular 
localities,  under  their  particular  conditions,  while  the  repealing 
act  is  general  and  not  thus  particular.  And  also  the  court  will 
consider  the  fact  that  subsequent  to  the  passage  of  the  general 
law  the  state  pursued  the  same  policy  of  conferring  upon  local 
governing  bodies  of  cities  and  towns  the  power  to  pass  regulations 
of  a  like  nature.54     But  where  a  general  law  makes  a  certain  act 


Where  the  power  to  license  the  traf- 
fic in  spirituous  liquors  is  by  the 
charter  of  a  city,  expressly  conferred 
on  the  city  council  this  power  can- 
not be  delegated  to  the  mayor  of  the 
city  by  ordinance,  Kinmundy  v. 
Mahan,  72  111.  462,  citing  City  of 
East  St.  Louis  v.  Wehrung,  50  111. 
31. 

Power  conferred  upon  a  city  coun- 
cil of  a  city  to  make  reasonable  reg- 
ulations as  to  where  or  within  what 
parts  of  th  ■  city  the  business  of  deal- 
ing in  intoxicating  liquors  may  be 
carried  on  is  a  legislative  power 
which  can  not  be  delegated  to  the 
mayor  or  other  city  official.  If  must 
be  exercised  by  an  ordinance  passed 
by  the  council.  In  re  Wilson,  32 
Minn.   145,   19  N.  W.  723.     See  also 


State  v.  Kantler,  33  Minn.  69,  21 
N.  W.  856;  Darling  v.  City  of  St. 
Paul,   19  Minn.   389. 

B3.  State    v.    Common    Council,    94 
Minn.  81,  101  N.  W.  1063. 

54.  State  v.  Harris,  50  Minn.   128, 
52  N.  W.   387,  531. 

Where  a  village  was  incorpo- 
rated under  a  general  village 
incorporation  act  which  provided 
that  it  should  have  power  to  suppress 
Baloons,  for  the  sale  of  spirituous  and 
intoxicating  liquors  it  was  decided 
that  all  ordinance  passed  under  such 
authority  for  the  suppression  of  sa- 
loons were  by  implication  repealed  b 
a  general  liquor  law  which  was  sub- 
sequently enacted.  Village  of  Sparta 
v.  Boorom,  129  Mich.  535,  89  N.  W. 
435,  90  X.   \V.  681. 


176 


MUNICIPAL  POWERS  AND  REGULATIONS. 


[§   151 


an  offense  and  prescribes  the  punishment  therefor  it  is  decided 
that  such  enactment  operates  to  repeal  the  provisions  of  charters 
granted  prior  thereto  and  which  are  inconsistent  therewith  except 
so  far  as  provisions  in  the  charters  may  be  excepted  from  the 
operation  of  the  general  law.55 

§  151.  Act  conferring  power  on  city  as  repealing  general  law. 

The  grant  by  the  legislature  to  an  incorporated  city  or  town 
of  power  in  respect  to  the  liquor  traffic  does  not  by  implication 
repeal  the  general  law  upon  that  subject  but  to  have  that  effect 
the  repeal  must  be  express  or  the  acts  repugnant  in  their  pro- 
visions.56 Unless  it  be  plainly  manifest  that  such  is  the  inten- 
tion of  the  legislature,  no  provisions  of  a  city  charter  will  be 
construed  as  repealing,  changing  or  modifying  a  general  law  of 
the  state  which  was  in  force  in  such  city  before  the  charter  was 
enacted.57  So  power  conferred  upon  a  city  to  control,  regulate, 
license  or  tax  the  sale  of  spirituous  or  intoxicating  liquors  within 


A  statute  which  gives  the 
right  to  tLe  manufacturer  to  sell 
wine  made  from  grapes  grown  on  his 
own  Ian'1  floes  not  take  away  from 
cities  and  cowns,  having  power  to 
regulate  the  liquor  traffic  within  their 
limits,  authority  to  prescribe  by  ordi- 
nance that  such  wines  when  sold 
shall  be  free  from  injurious  adulter- 
ations. Stephens  v.  Henderson,  129 
Ga.  218,  47   S.  E.  498. 

55.  President  of  Village  of  Platte- 
ville  v.  McKernan,  54  Wis.  487,  11 
N.  \V.  7^8. 

56.  Gardner  v.  People,  20  111.  430. 
State  v.  Witter,  107  N.  C.  792,  12 
S.  E.  328. 

57.  State  v.  Fisher,  33  Wis.  154. 

The  general  law  of  a  state  respect- 
ing the  sale  of  intoxicating  liquors 
is  not  to  be  regarded  as  abrogated 
within  a  certain  locality,  and  left 
operative   generally,    unless    such    an 


intention  is  apparent  in  the  legis- 
lative enactments.  State  v.  Langdon, 
29  Minn.  393,  13  N.  W.  187. 

Where  power  is  conferred  upon  a 
municipality  to  do  certain  acts  in  re- 
spect to  the  liquor  traffic,  which  are 
in  conflict  with  any  other  general  or 
local  law  which  is  in  force,  the  con- 
ferring of  the  power  does  not  of  it- 
self operate  as  a  repeal  of  the  prior 
law,  but  such  law  continues  in  force 
until  the  power  conferred  by  the  sub- 
sequent act  has  been  exercised.  State 
v.  Rushing,  140  Ala.  187,  36  So. 
1007. 

The  grant  to  a  municipality  of 
power  to  license  regulate  or  control 
this  traffic  must,  so  far  as  it  can,  be 
e  eised  in  conformity  to  the  general 
law  which  it  does  not  operate  to  re- 
peal. City  of  Louisville  v.  Kean,  18 
B.  Mon.  (Ky.)  9.  Corbett  v.  Wash- 
ington Territory,  1  Wash.  Ter.  431. 


§   151] 


MUNICIPAL  POWERS  AND  REGULATIONS. 


177 


its  limits,  is  not  to  be  construed  as  repealing  general  laws  of  the 
state,  but  such  power  must  be  exercised  in  a  manner  which  is 
not  in  conflict  therewith.  Thus  such  power  confer  re.  1  upon  a 
city  will  not  allow  it  to  pass  any  regulation  which  conflicts  with 
a  general  law  of  the  state  requiring  the  closing  of  saloons  on 
Sunday.58  And  where  exclusive  power  is  given  to  cities  of  a 
certain  class  to  regulate  and  license  the  sale  of  liquors  within  their 
limits  the  general  law  of  the  state  will  of  course  not  be  regarded 
as  repealed  where  the  statute  conferring  such  power  provides  that 
it  is  granted  subject  to  all  the  restrictions,  regulations,  forfeitures 
and  penalties  provided  by  the  general  law  of  the  state  upon  the 
subject.59     And  where  an  act  to  regulate  the  sale  of  liquors  in  a 


58.  McCuen  v.  State,  19  Ark  636; 
Heinssen  v.  State,  14  Colo.  228,  23 
Pac.  995 ;  Palmer  v.  State,  2  Oreg.  66. 

In  a  case  in  Colorado  it  was  decided 
that  the  grant  of  exclusive  power 
and  authority  to  one  jurisdiction,  to 
restrain,  regulate  or  prohibit  a  bus- 
iness to  every  day  in  the  week,  was 
irreconcilable  with  the  existence  of  a 
concurrent  power  to  prohibit  the  ex- 
ercise of  the  same  vocation  upon  a 
single  day  in  the  week  and  that  a 
special  act  incorporating  a  city  and 
vesting  it  with  exclusive  jurisdiction 
over  the  whole  subject  repealed  the 
general  law  by  necessary  implication. 
Huffsnrith  v.  People,  8  Colo.  175,  6 
Pac.  157,  54  Am.  Rep.  550.  In  this 
case  the  act  gave  exclusive  power  to 
tbe  city  of  Denver  to  make  such 
regulations  and  impose  such  re- 
straints as  it  deemed  expedient  pro- 
vided the  same  were  not  repugnant 
to  the  constitution  of  the  United 
States  or  the  Constitution  of  the 
State  of  Colorado. 

In  a  subsequent  ease  in  tlii<  state. 
however,  the  use  of  the  word  repeal  in 
the  earlier  case  is  explained  by  stat- 
ing in  substance  thai  the  word  "re- 
pealed "  was  improperly  used  and  that 


more  properly  speaking  the  word 
"  suspended  should  have  been  used 
and  that  such  suspension  was  only  ef- 
fected when  the  city  passed  the  or- 
dinance and  that  a  subsequent  repeal 
of  the  ordinance  left  the  general  law 
of  the  state  in  force.  Heinssen  v. 
State,  14  Colo.  228,  23  Pac.  995. 

And  in  later  cases  it  has  been  de- 
cided that  a  general  statute  against 
keeping  saloons  open  on  Sunday  is  in 
force  in  cities  and  towns  that  have 
assumed  under  the  law  the  exclusive 
right  to  license,  regulate  or  prohibit 
the  sale  of  liquor  within  their  limits. 
Muller  v.  People,  24  Colo.  251,  48  Pac. 
965,  followed  in  Jackson  v.  People, 
24  Colo.  254,  48  Pac.  1115.  See  also 
Pettit  v.  People,  24  Colo.  517,  52  Pac. 
676. 

59.  Sanders  v.  State,  34  Neb.  872, 
52  N.  W.  721. 

A  provision  in  tbe  charter  of  a  city 
limiting  the  power  of  the  city  council 
to  pass  ordinance  as  follows:  '"Pro- 
vided that  they  be  not  repugnant  to 
the  constitution  of  the  United  States 
or  of  this  state"  does  no!  exempt  the 
city  from  the  operation  of  the  gen- 
eral excise  laws  of  the  state.  State 
v.   Fisher,   33  Wis.   154. 


178  MUNICIPAL  POWERS  AND  KEGULATIONS.    [§§    152,153 

town  is  expressly  kept  in  force  by  a  provision  in  a  subsequent 
general  statute,  if  the  two  statutes  cannot  operate  together  within 
the  same  territorial  limits,  the  provisions  of  the  subsequent 
statute  will  be  regarded  as  not  applicable.60 

§  152.  Construing-  statutes  ordinances  together. 

Statutes  and  city  ordinances  passed  under  power  conferred  by 
the  legislature  may  in  many  cases  be  construed  together,  as  where 
the  statute  does  not  entirely  cover  the  matter  and  the  city  in  the 
exercise  of  the  power  conferred  passes  an  ordinance  which  is  in 
its  nature  supplementary  to  the  regulations  of  the  statute  or  the 
offenses  designated  therein,  and  not  being  in  fact  in  conflict  there- 
with, it  may  be  enforced.61 

§  153.  Statute  and  ordinance  making  same  act  an  offense. 

The  fact  that  a  certain  act  is  made  an  offense  against  the  law 
of  the  state  is  held  not  to  prevent  the  authorities  of  a  town,  under 
a  proper  delegation  of  power,  from  making  regulations  in  respect 
to  the  doing  of  such  act  and  making  the  violation  of  the  ordinance 
an  offense  also.62  So  in  an  early  case  in  Indiana  it  was  decided 
that  though  a  party  cannot  be  punished  twice  for  the  same  act 
under  the  same  jurisdiction,  he  may  under  different  jurisdictions, 
as  for  an  act  in  violation  of  the  charter  of  a  city  and  the  penal 
law  of  the  state.63  But  a  city  must  be  specially  authorized  in 
order  to  enable  it  to  make  that  an  offense  against  the  city  and 

60.  Camp  v.  State,  27  Ala.  53.  ute,  both  cannot  be  enforced  so  as  to 

61.  State  v.  Welch,  36  Conn.  215;  subject  a  party  to  a  double  penalty. 
Hill  v.  Mayor,  72  Ga.  314;  Village  The  same  act  may  constitute  an 
of  Cohoes  v.  Moran,  25  How.  Pr.  (N.  offense  both  against  a  state  law  and 
Y.)    385.  a  city  ordinance,  and  the  punishment 

62.  Mayor  v.  Rouse,  8  Ala.  515;  of  the  offender  by  either  the  city  or 
State  v.  Harris,  50  Minn.  128.  Com-  the  state  will  not  bar  a  prosecution 
pare  Wighl  man  v.  State,  10  Ohio  452.  by  the  other.     Fortner  v.  Duncan,  91 

Compare  State  v.  Welch,  30  Conn.  Ky.  171,  15  S.  W.  55,  11  L.  R.  A.  188. 

215,   holding   that   so    far   as   a   gen-  But  see  §   108  of  Ky.  Const. 
eral  statute  covers  the   same  ground  63.  Ambrose  v.   State,   6   Ind.   351. 

with  a  city  by-law  authorized  by  stat- 


§§   154,155]      MUNICIPAL  POWERS  AND  REGULATIONS.  179 

punishable  as  such  where  it  is  also  an  offense  against  the  laws  of 
the  state.04 

§  154.  Construing  ordinances  together. 

The  general  rule  which  controls  in  the  construction  of  statutes 
that  where  a  subsequent  statute  is  consistent  with  a  former  one  the 
earlier  statute  will  not  be  regarded  as  repealed,  but  that  the  two 
will  be  construed  together  and  effect  given  thereto  if  possible 
applies  in  construing  ordinance  relating  to  the  liquor  traffic.  So 
where  an  ordinance  provided  that  no  one  should  conduct  a  dram 
shop  without  a  license  fee  therefor,  and  a  later  ordinance  pro- 
vided regulations  which  must  be  complied  with  by  an  applicant 
for  a  license  in  order  to  obtain  it  this  rule  was  applied.65  And 
where  an  ordinance  which  provides  that  it  repeals  a  former  ordi- 
nance, contains  provisions  which  are  void,  it  will  not  operate  to 
repeal  the  provisions  of  such  former  ordinance  which  are  in  con- 
flict with  the  void  provisions.66 

§  155.  Ordinance  invalid  or  invalid  in  part. 

Where  an  ordinance  in  regard  to  the  sale  of  intoxicating  liquors 
is  invalid  it  does  not  operate  to  repeal  a  former  ordinance.67 
And  in  construing  ordinances  it  is  a  generally  accepted  rule  that 
where  an  ordinance  contains  both  valid  and  invalid  provisions 
and  the  latter  can  be  eliminated  without  affecting  the  remainder 
it  will  not  be  invalid  in  toto,  but  the  valid  part  will  be  allowed 
to  stand.68     So  though  a  city  ordinance  prohibiting  the  sales  of 

04.  Foster  v.  Brown.  55  Iowa   686.  60.  City    of    Portland    v.    Schmidt, 

Power   not   inferred.— Authority  13  Oreg.    17.   6    Pac.   221. 

to  enact  an  ordinance  providing  pun.  67.  Ensley    v.    State,     (Ind.    S.    C. 

ishmenl  for  an  act  which  ia  an  offense  1909),  88   \.   K.  62. 

against   the  laws  of  the  state  can  not  68.  Florida.    Canova    v.    Williams, 

be   inferred   irom  the  general   welfare  41    Fla.  509,  27  So.  30. 

clause  usually  found  in  city  charters.  Georgia. — Campbell      v.      City      of 

Moran    v.   City   of   Atlanta.    102   Ga.  Thomasville    (Ga.    1909).    64    S.    E. 

840,  30  S.  E.  208.  815. 

«">•   Ex  parte  Hinkle,  104  Mo.  App.  Indiana. — Wagner       v.       Town       of 

104,  78  S.  W.  317.  Garrett,   118   Ind.   114,  20  N.  E.  706. 


ISO 


MUNICIPAL  POWERS  AND  EEGULATIONS. 


[§    156 


such  liquors  embraces  a  class  of  sales  which  the  city  has  no  power 
to  prohibit,  it  may  still  be  enforced  as  to  such  sales  as  the  city 
is  authorized  to  prohibit.69  And  where  an  ordinance  prohibiting 
the  sale  of  intoxicating  liquors  provides  a  fine  as  a  punishment  for 
its  violation  and  also  for  imprisonment,  it  has  been  decided  that 
though  the  part  as  to  the  imprisonment  may  be  void,  the  remain- 
der of  the  ordinance  is  not  thereby  invalidated.70 

§  156.  Prohibiting  traffic  in  portions  of  city. 

As  the  state  may  in  the  exercise  of  the  police  power  designate 
localities  in  which  the  traffic  is  prohibited,71  so  also  may  a  muni- 
cipality under  a  proper  delegation  of  power  from  the  sovereign 
power,  designate  within  its  corporate  limits  certain  sections  of 
the  city  in  which  the  sale  of  intoxicating  liquors  is  forbidden, 
such  as  the  residence  portion  of  the   city.72      So   in  a  case   in 


Kentucky.— McNulty  v.  Toof,  116 
Ky.  202,  75  S.  W.  258. 

Nebraska. — State  v.  Hardy,  7  Neb. 
377. 

Oregon. — Houck.  v.  Ashland,  40 
Oreg.   117,  66  Pac.  697. 

69.  Harbaugh  v.  City  of  Monmouth, 
74  111.  367. 

70.  Bailey  v.  State,  30  Neb.  855, 
47  N.  W.  208. 

71.  See  §§   100-104  herein. 

72.  People  v.  Blom,  120  Mich.  45, 
78  N.  W.  1015;  Territory  v.  Robert- 
son, 19  Okla.  149,  92  Pac.  144;  State 
v.  City  Council,  7  Wyo.  417,  52  Pac. 
97.',,  40  L.  R.  A.  710. 

"  Near  beer  ".—A  city  may  pro- 
hibit  Bale  of  in  certain  sections. 
Campbell  v.  City  of  Thomasville  (Ga. 
190!),.  64  S.   K.  815. 

"  The  legislature  of  a  state  is  au- 
thorized to  empower  city  councils  by 
special  charter  to  prescribe  the  boun- 
daries and  limits  within  which  the 
sale  of  liquor  shall  be  prohibited  by 
law   and   such   local   authorities   may 


define  and  limit  the  area  within  which 
alone  such  sale  may  be  lawful."  Ex 
parte  King,  52  Tex.  Cr.  383,  107  S. 
W.  549.  Per  Ramsey,  J.,  citing  Cohen 
v.  Rice  (Tex.  Civ.  A.)  101  S.  W. 
1052. 

Words  "  residence  portion " 
construed. — Under  such  a  statute  the 
words  "  residence  portion  of  a  city  " 
do  not  necessarily  mean  a  portion  of 
the  city  given  up  exclusively  to  fam- 
ily residences.  Shea  v.  City  of  Mun- 
cie,  148  Ind.  14,  46  N.  E.  138. 

Prohibiting  wholesalers.— An 
ordinance  is  not  unreasonable  or  un- 
justly discriminatory  in  the  absence 
of  satisfactory  showing  to  this  effect 
which  prohibits  wholesale  vendors  of 
intoxicating  liquors  from  carrying  on 
the  business  in  a  certain  district  while 
at  the  same  time  it  permits  saloons 
and  liquor  selling  restuarants  to  con- 
tinue in  operation.  Grumbach  v.  Le- 
lande  (Cal.  S.  C.  1909),  9S  Pac.  1059. 

Prohibiting  saloons  near 
parks. — Where    by    statute   the    park 


§   156]  MUNICIPAL  POWEKS  A.XI)  REGULATIONS.  181 

Michigan  it  is  said:  "Under  this  comprehensive  police  power  of 
tin  state  it  is,  in  my  judgment,  too  clear  for  argument  that  the 
legislature  may  confer  upon  municipalities  the  right  to  determine 
the  places  where  saloons  may  be  kept,  and  to  determine  that 
question  upon  each  application."7''  So  under  a  statute  author- 
izing the  common  council  of  a  city  to  regulate  places  where  in- 
toxicating liquors  are  sold,  and  to  exclude  such  sales  from  the 
suburban  or  residence  portion  of  the  city,  the  common  council 
may  fix  and  declare  the  boundaries  of  the  business  district  of  a 
city  in  an  ordinance  excluding  the  sale  of  intoxicating  liquors 
from  the  suburban  or  residence  portion.74  And  though  a  muni- 
cipality may  have  no  authority  to  pass  an  ordinance  prohibiting 
the  sale  of  intoxicating  liquors  within  its  limits,  as  this  would  be 
prohibition  in  violation  of  a  state  law,  yet  it  is  declared  that  it 
may  designate,  under  proper  authority,  the  localities  where  the 
sale  of  such  liquors  is  inhibited,  as  this  is  regulation  and  not 
prohibition.75  And  in  a  recent  case  in  Illinois,  it  is  decided  that 
municipalities,  under  a  general  power  granted  to  them  to  license, 
regulate  and  prohibit  the  sale  or  giving  away  of  intoxicating 
liquors,  have  authority  to  define  the  territory  within  which  the 

commissioners  of  a  city  are  given  the  that  other  evidence  may  be  admitted 
power  "  to  forbid  by  general  order  or  to  show  that  the  place  of  sale  by  de- 
rules  and  to  abate  any  horse  racing,  fendant  was  in  fact  in  the  business 
gambling,  offensive  or  dangerous  bus-  portion. 

iness  or  amusement "  witbin  a  cer-  Where  boundaries  not  de- 
tain number  of  feet  of  any  park  they  clared. — Under  a  statute  authoriz- 
may  prohibit  the  carrying  on  of  a  ing  the  common  council  of  a  city  to 
saloon  business  within  the  prohibited  evclude  such  sales  from  the  business 
limits.  In  re  Arszman.  40  Ind.  App.  or  residence  portion  of  a  city  and  to 
218.  81  N.  E.  680.  confine    the    places   where    sales    may 

73.  Sherlock  v.  Stuart.  90  Mich.  be  made  to  the  business  portion  of 
193,  55  N.  W.  845,  21  L.  R.  A.  580n.  the  city  an  ordinance  is  not  void  for 

74.  Rowland  v.  City  of  Greencastle,  indefiniteness  which  does  not  declare 
157  Ind.  591,  62  N.  E.  474,  holding  therein  what  the  boundaries  of  the 
that  on  the  trial  of  an  action  charg-  residence  and  of  the  business  por- 
ing a  violation  of  such  an  ordinance,  tions  are.  Shea  v.  City  of  Muncie, 
the  ordinance  is  prima  facie  evidence  14^    Ind.    14,   40   N.  E.    138. 

as  to  what  is  the  residence  and  whal  '•"••  Garonzik  v.   State,  50  Tex.  Cr. 

the  business  portion  of  the  city,  but       533,   100  S.  W.   374. 


182  MUNICIPAL  POWERS  AND  REGULATIONS.    [§§    157,158 

business  may  be  conducted.76  And  in  Indiana,  it  has  been  held 
that  under  a  general  power  to  municipalities  to  regulate  the  liquor 
traffic  they  may  exclude  such  traffic   from   residence  districts.77 

§  157.  Same  subject — ordinances  construed. 

An  ordinance  which  prescribes  certain  limits  within  which  the 
traffic  in  intoxicating  liquors  may  be  carried  on  and  outside  of 
which  it  is  forbidden,  is  not  a  discrimination  or  a  denial  of  the 
equal  protection  of  the  law  within  the  meaning  of  Fourteenth 
Amendment  to  the  United  States  Constitution.78  Where  a  liquor 
regulation  excludes  the  conduct  of  a  business  from  a  given  district 
in  which  such  establishments  are  already  in  operation,  it  is  no 
objection  to  the  validity  of  the  regulation  that  its  effect  is  to 
impair  or  render  valueless  the  business  of  those  operating  such 
establishments.79  An  ordinance  providing  that  no  license  for  the 
sale  of  alcoholic  or  malt  drinks  shall  be  used  within  a  certain 
distance  of  any  school  or  established  church  at  the  time  said  license 
was  granted,  without  the  consent  of  the  council  of  the  city,  has 
been  held  void  in  that  it  permits  of  an  arbitrary  discrimination 
by  said  council  as  to  personal  fitness  to  engage  in  the  business  of 
retailing,  a  matter  exclusively  under  statutory  regulation.80 

§  158.  As  to  ordinances  where  territory  annexed  to  city. 

As  a  general  rule,  where  territory  is  annexed  to  a  city,  the 

76.  Strauss  v.  City  of  Galesburg,  that  when  the  adoption  of  a  niunici- 
203  111.  234,  67  N.  E.  836,  aff'g  pal  ordinance  is  expressly  authorized 
Strauss  v.  City  of  Galesburg,  89  111.  by  the  legislature,  and  the  power  so 
App.  504.  granted  is  not  in  conflict  with  a  con- 

77.  City  of  Greencastle  v.  Thomp-  stitutional  prohibition,  it  cannot  be 
son,  168  Ind.  492,  81  N.  E.  497,  citing  successfully  assailed  as  unreasonable 
In  re  Wilson,  32  Minn.  145,  19  N.  W.  in  a  judicial  tribunal."  Per  Mont- 
723;    Strauss   v.    City    of   Galesburg,  gomery,  J. 

203  111.  234,  67  N.  E.  836;  Mayor  v.  78.  Williams  v.  State,  52  Tex.  Cr. 

Shattuck,  19  Colo.  104,  34  Pac.  947,  371,  107  S.  W.  1121. 

41  Am.  St.  R.  208.  79.  Grumbach   v.   Lelande    (Cal.  S. 

The  court  said  in  the  case  referred  C.   1908),  98  Pac.   1059. 

to   in  the  text:      "Conceding  that   a  80-  Ex  parte  Theisen,  30  Fla.  529, 

delegated   authority  must   be   strictly  11  So.  901,  32  Am.  St.  Rep.  36. 
construed,  it  is  a  well-settled  principle 


§    159]  MUNICIPAL  POWERS  AND  REGULATIONS.  133 

ordinances  of  the  city  relating  to  the  liquor  traffic  became  at 
once  operative  over  the  portion  annexed  in  the  absence  of  some 
countervailing  legislation.81  But  the  legislature  may  provide  that 
ordinances  of  such  annexed  territory  may  remain  in  force 
therein.82 

§  159.  Ordinance  as  to  screens  etc. 

A  citj  in  the  exercise  of  the  power  conferred  upon  it  to  regulate 
and  restrain  the  liquor  traffic  may  require  the  removal  of  screens 
or  curtains  from  the  windows  of  a  saloon  during  the  hours  that 
it  is  supposed  to  be  closed.  Such  an  ordinance  invades  no  rights 
of  the  saloon  proprietor  but  rather  tends  to  enforce  a  perform- 
ance of  the  law  as  to  keeping  the  saloon  closed  and  forbidding 
the  sale  of  liquor  during  such  hours.83  And  a  city  may  by  or- 
dinance prohibit  partitions  and  provide  that  windows  and  doors 
shall  be  kept  so  as  not  to  conceal  interior  of  saloons  where  by  char- 
ter the  city  is  given  power  to  regulate  or  prohibit  the  sale  of  spirit- 
uous liquors.84  But  a  municipal  corporation,  under  authority  to 
license,  regulate  or  restrain,  has  no  power  to  pass  an  ordinance 
requiring  the  removal  from  the  doors  or  windows  of  all  saloons, 
of  all  screens  or  other  obstructions  to  the  view  of  the  interior  of, 

81.  People  v.  Harrison,  191  111.  257,  Va'rley   (Neb.  1908),  118  N.  W.  1114. 

61  N.  E.  99.  "Near  beer  ".—City  may  prohibit 

si».  People  v.  Harrison,  191  111.  257,  screens  in  places  where  sold.     Camp- 

61    \.   E.  99;   Swiff  v.  Klein,  1G3  111.  bell    v.     City    of    Thomasville     (Ga. 

269,  45  N.  E.  219.  1909).  04  S.  E.  815. 

s'5-  Decker    v.    Sargeant,    125    Ind.  General  words  following  particular 

404,  25  N.  E.  458;  Croker  v.  Camden  and  specific  words,  must,  as  a  general 

Board  of  Excise,  73  N.  J.  L.  460,  63  rule,  be  confined  to  things  of  the  same 

Atl.  901.  kind    as    there    specified.      Shultz    v. 

What  constitutes   a  violation.  Cambridge,  38  Ohio  St.  659,  holding 

— A    movable    screen    maintained    in  in   respeci    to  an  ordinance  requiring 

the  front  of  a  saloon  sufficienl  to  ob-  the     removal     of     screens,     curtains, 

struct     the     view     of     the     interior  blinds  " or  other  device  from  windows 

through    the    door    or    window    is    a  and   doors  of  Baloons,  that  the  words 

violation  of  the  screen  law  although  "other  device"  do  not  include  a  par- 

at    certain    places    from    the    outside  tit  ion  of  a  permanent  character, 

substantially   all  the  interior  of  the  84.  Paul  v.  Washington,  134  N.  C. 

saloon    can    be    observed.      Woods    v.  303.  47  S.  E.  703,  65  L.  R.  A.  902. 


1S4  MUNICIPAL  POWEES  AND  REGULATIONS.    [§§    160,  161 

and  business  transacted  within,  such  saloon,  such  an  ordinance 
being  void,  as  being  prohibitive  of  a  lawful  business,  and  not 
merely  regulative.85 

§  160.  Ordinances  as  to  stalls,  booths  or  inclosures. 

Under  the  power  conferred  upon  a  city  to  license  and  regulate 
the  sale  of  intoxicating  liquors  it  may  by  ordinance  prohibit  the 
maintenance  of  stalls,  booths,  or  inclosures  in  saloons.86  So  an 
ordinance  which  forbids  the  keeping  of  any  inclosure  in,  or  con- 
nected with,  any  room  wherein  intoxicating  liquors  may  be  sold 
by  a  licensed  dealer,  which  is,  or  can,  by  any  ingenuity  or 
pretense,  be  used  as  a  lounging  or  drinking  place,  or  for  any 
immoral  purpose,  is  not  unreasonable,  arbitrary  or  oppressive.87 
And  where  an  ordinance  prohibited  the  construction  and  mainte- 
nance of  stalls,  booths,  or  other  inclosures  of  any  kind,  with 
screens,  curtains  or  partitions  of  any  kind,  in  or  connected  with 
any  room  or  place  wherein  intoxicating  liquors  were  licensed  to  be 
sold  and  the  rear  of  a  licensed  room  in  which  a  saloon  was 
conducted,  was  cut  off  by  a  wooden  partition,  making  a  room  in 
which  were  kept  tables  and  chairs  and  in  the  center  of  the  parti- 
tion was  a  permanent  opening  without  a  door  screen  or  curtain, 
which  was  slightly  wider  than  an  ordinary  door  it  was  held  that 
such  room  was  an  inclosure  within  the  meaning  of  the  or- 
dinance.88 

§  161.  Prohibiting  sales  to  minors. 

The  power  of  the  state  to  prohibit  the  sales  of  liquors  to  minors 
is  as  we  have  seen  unquestioned,89  and  such  provision  is  gen- 
erally made  by  the  laws  of  the  state.     The  authority  also  may 

85.  Steffy  v.  Town  of  Monroe  City,  86.  State  v.  Barge,  82  Minn.  256, 

135  Ind.  466;   35  N.  E.  121,  41  Am.  84  N.  W.  911. 

St.   Rep.   436;    See   also   Champer   v.  87.  State  v.   Barge,   82  Minn.  256, 

City  of  Greencastle,  138  Ind.  339,  35  84  N.  W.  1116. 

N.  E.  14,  24  L.  R.  A.  768n,  46  Am.  88.  State  v.  McGregor,  88  Minn.  74, 

St.  Rep.  390.  92   N.   W.   509. 

89.  See   §§    112,    113,   herein. 


§    102]  MUNICIPAL  POWERS  AND  REGULATIONS.  £gg 

be  expressly  delegated  to  municipal  corporations,  but  in  the 
absence  of  such  a  delegation  of  power,  the  grant  of  authority  to 
prohibit  or  even  to  regulate  and  restrain,  would  undoubtedly  In- 
held  to  be  sufficient  to  authorize  a  city  to  enact  ordinances  pro- 
hibiting such  sales.  And  this  power  would  also  seem  to  i 
under  the  general  welfare  clause  usually  found  in  citv  charters. 
So  under  a  charter  provision  authorizing  the  commissioners  of  a 
town  "  to  make  such  by-laws,  rules,  and  regulations  for  the  better 
government  of  the  town,  as  they  may  deem  necessary,  provided 
the  same  be  not  inconsistent  with  the  law  of  the  land,"  an  or- 
dinance is  valid  which  prohibits  an  unmarried  minor,  excepl 
when  acting  as  the  agent  of  his  parent  or  guardian,  from  entering 
any  barroom  or  room  where  vinous  or  malt  liquors  are  kept  for 
sale.90 

§  162.  Prohibitions  as  to  women. 

It  is  held  to  be  a  fair  regulation  to  prohibit  by  ordinance  any 
keeper  of  a  house  of  public  entertainment,  where  intoxicating 
drinks  are  sold,  from  permitting  the  assembling  of  females  there 
for  the  purpose  of  enticing  customers.91  And  an  ordinance  has 
been  sustained  which  provided  that  it  should  be  unlawful  for  any 
female  in  the  night  time,  after  twelve  o'clock  at  midnight,  to  be 
in  any  public  drinking  saloon,  beer  cellar,  or  billiard-room 
within  the  city  where  vinous,  malt  or  spirituous  liquors  were 
sold  or  given  away  to  be  drank  on  the  premises.92  But  an  or- 
dinance providing,  "  It  shall  be  unlawful  for  any  persan  maintain- 
ing any  saloon,  barroom  or  drinking  shop,  or  any  apartment 
thereto  attached,  to  permit  females  to  enter  their  said  places  of 

00.  State  v.  Austin.  114  N.  C.  855,       98,  116  X.  W.  558,  18  L.  R.  A.  N.  S. 

19   S.   E.   919,   41    Am.   St.   Rep.   817,       657. 

25  L.  R.  A.  283.  "  Near     beer.,,— Sales     of    to     fo- 

ot. Hoboken  v.  Greiner,  68  N.  J.  L.       malea   ,n:l.v  >'*'  prohibited.     Campbell 

592    53  Atl.  693.  v-   City   "'   Thomasville    (Ga.    1909), 

r>4  S.  E.  815. 


See  also  People  v.  Case,  153  Mich. 


»2.  Ex  parte  Smith,  38  Cal.  702. 


186 


MUNICIPAL  POWERS  AND  PECULATIONS. 


[§   163 


business,"  is  held  to  be  unconstitutional,  it  being  declared  that 
while  the  drinking  by  females  might  be  prohibited,  yet  their 
entrance  into  such  a  place  for  a  purpose  which  might  be  purely 
legitimate  and  lawful  could  not  be  made  the  subject  of  a  fine.93 

§  163.  Prohibitions  as  to  employment  of  women. 

The  legislature  may  enact  that  only  reputable  persons  shall  be 
allowed  to  carry  on  the  business  of  dealing  in  intoxicating 
liquors,  and  may  authorize  municipalities  to  determine  the  ques- 
tion of  fitness.94  So  power  conferred  upon  a  municipality  to 
regulate  the  places  where  intoxicating  liquors  are  sold  authorizes 
it  to  pass  an  ordinance  prohibiting  the  employment  of  females 
in  such  places.95  And  where  power  is  conferred  upon  counties, 
cities  and  towns  to  make  "  all  such  local,  police,  sanitary  and 
other  regulations  as  are  not  in  conflict  with  the  general  laws,"  an 
ordinance  is  held  to  be  valid  which  provides  that  no  license  shall 
be  issued  to  any  person  for  the  purpose  of  engaging  in  the  busi- 
ness of  selling  intoxicating  liquors  in  any  dance-cellar  or  dance- 
hall,  or  in  any  place  where  females  are  permitted  to  wait  upon 


»3.  State  v.  Nelson,  10  Ida.  522, 
67  L.  R.  A.  808,  79  Pac.  79.  The 
Court  said:  "There  is  no  excep- 
tion ;  the  mere  matter  of  entrance 
is  the  essence  of  the  crime.  There  is 
no  question  about  the  power,  and  we 
may  say  the  duty,  of  the  city  au- 
thorities to  enact  such  ordinances  as 
will  promote  morals  and  regulate  the 
sale  of  intoxicating  liquors  in  such  a 
way  as  to  prohibit  immoral  women 
from  frequenting  such  places  for  the 
purpose  of  drinking,  engaging  in 
gaiws.  .soliciting  trade,  or  any  other 
immoral  purpose,  but  to  say  by  an 
ordinance  that  a  wife  or  mother  may 
not  enter  a  saloon  without  subject- 
ing herself  to  a  fine  (as  well  as  the 
proprietor)  in  search  of  a  recreant 
husband    or    a    wayward    son,    is    be- 


yond the  legal  power  of  the  city.  So 
long  as  the  state  and  the  city  of 
Boise  see  fit  to  license  the  retail  sale 
of  liquors,  so  long  must  they  protect 
parties  lawfully  engaged  in  that  bus- 
iness in  a  reasonable  way." 

Compare  State  v.  Nelson,  10  Ida. 
522,  79  Pac.   79,  67  L.  R.  A.  808. 

94.  Sherlock  v.  Stuart,  9G  Mich. 
193,  55  N.  W.  845,  21  L.  R.  A.  580n. 

95.  Bergman  v.  Cleveland,  39  Ohio 
St.  651.  Compare  Matter  of  Ma- 
guire,  57  Cal.  604,  40  Am.  Rep.  125, 
holding  a  similar  ordinance  to  be  in 
violation  of  a  constitutional  provision 
that:  "No  person  shall  on  account 
of  sex  be  disqualified  from  entering 
upon  or  pursuing  any  lawful  busi- 
ness, vocation  or  profession." 


§   1C4] 


Ml'NICll'AL   POWERS  AND   REGl   LAT1 


1-7 


any  person  and   win  rein  there  is  also  any  musical,  theatrical  or 
other  public  exhibition.98 

§  164.  Requiring  Sunday  closing. 

Authority  granted  to  a  municipal  corporation  to  "  regulate, 
restrain,  and  prohibit  "  the  sale  of  spirituous,  vinous,  or  malt 
liquor  necessarily  confers  the  power  to  make  and  enact  any 
reasonable  ordinance  or  regulation  in  reference  thereto,  and  an 
ordinance  inhibiting  the  sale  of  such  liquor  on  Sunday  is  declared 
to  be  within  the  just  exercise  of  such  power.97  And  independent 
of  power  given  to  a  city  to  prohibit  this  traffic,  authority  to 
regulate  and  control  such  traffic,  or  even  the  general  welfare 
clause  usually  found  in  city  charters,  would  seem  to  justify  ac- 
tion of  municipal  authorities  directing  the  closing  of  saloons  on 
Sunday,  independent  of  course  of  any  statute  authorizing  them 
to  open  on  that  day.98  So  an  ordinance  making  it  an  offense  for 
a  liquor  dealer  to  keep  open  any  part  of  the  division,  apartments 
or  connected  sections  of  the  house  used  for  the  business  of  retail- 
ing on   Sunday,   is  not   unreasonable   or  invalid.99      And   under 


96.  Ex  parte  Hayes,  98  Cal.  555, 
33  Pac.  n^,  20  L.  R.  A.  701. 

97.  Cranor  v.  Albany,  43  Oreg.  144, 
71  Pac.  1042.  The  court  said:  "This 
has  been  so  often  held  by  the  courts 
that  we  need  only  call  attention  to 
some  of  the  authorities "  citing  17 
Am.  &  Eng.  Ency.  Law  (2nd  Ed.) 
288 ;  Piqua  v.  Zimmerman,  35  Ohio 
St.  507;  Decker  v.  Sargeant,  125  Ind. 
404,  25  N.  E.  458;  State  v.  Ludwig, 
21  Minn.  202;  Schwuchow  v.  Chi- 
cago, 68  111.  444. 

98.  Florida. — Thomas  v.  Saunders 
(Fla.   1908),  47   So.  700. 

Georgia. — Hood  v.  Von  Glahn,  88 
Ga.   405,   14   S.   E.   564. 

Illinois. — Schwuchow  v.  City  of 
Chicago,  68  111.  444. 

Kentucky.  Megowan  v.  Common- 
wealth, 2  Mete.  3. 


Louisiana.  Corporation  of  Minden, 
36  La.  Ann.  912. 

Minnesota.  State  v.  Hani-.  50 
Minn.   128,  52  N.  W.  387,  531. 

New  Jersey. — Richards  v.  Bayoune, 
61   N.  J.  L.  496,  39  Atl.  708. 

Ohio.  City  of  Piqua  v.  Zimmerlin, 
35  Ohio  St.  507. 

Tennessee.  Mayor  v.  Linck.  12 
Lea.  499. 

Texas.— Gabel  v.  Houston,  29  Tex. 
3.35. 

"  Near  beer ". — Ordinance  as  to 
closing  on  Sunday  places  for  sale  of 
is  reasonable.  Campbell  v.  City  of 
Thomasville  (Ga.  1909),  64  s.  E.  sir,. 

99.  Orme  v.  Mayor  of  Tuscumbria, 
150  Ala.  520,  43  So.  584.  In  this 
case  it  was  -aid:  "Ordinances  reg- 
ulating, under  the  police  power,  the 
liquor  business,  especially  in  relation 


1SS  MUNICIPAL  POWERS  AND  PECULATIONS.  [§    165 

authority  given  to  a  city  to  license,  and  regulate  or  prohibit 
saloons,  an  ordinance  is  not  ultra  vires  which  provides  that  it 
shall  be  unlawful  for  any  saloon  keeper  to  open  his  place  of  busi- 
ness on  Sunday  for  the  sale  of  cigars  or  of  non-intoxicating 
liquors.1  Again  where  power  is  conferred  upon  a  city  to  "  close 
drinking  houses,  saloons,  barrooms,  beer  saloons  and  all  places 
or  establishments  where  intoxicating  or  fermented  liquors  are 
sold  on  Sunday,  and  to  prescribe  the  hours  for  closing  them," 
and  an  ordinance  is  passed  which  prohibits  the  closing  of  saloons 
for  only  a  part  of  the  day,  Sunday,  the  provision  of  the  charter 
conferring  such  power,  coupled  with  the  ordinance  passed  in  the 
exercise  thereof  constitute  a  defense  to  a  prosecution  for  selling 
liquor  outside  of  such  hours  in  alleged  violation  of  the  general 
law  of  the  state.2  But  an  ordinance  prohibiting  the  opening  of 
saloons  on  Sunday,  either  by  the  owner  or  his  employees  without 
the  written  permission  of  some  city  official  or  officials  is  held  to 
be  in  its  application  to  openings  in  cases  of  necessity  or  emer- 
gency, oppressive,  unreasonable  and  void  as  giving  room  to  ar- 
bitrary discrimination.3 

§  165.  Requiring  closing  other  than  Sundays. 

Under  a  code  provision  empowering  cities  and  towns  to  adopt 

to    the    property    and    orderly    obser-  cised    in    particular    localities.      Gen- 

vanee  of  the  Sabbath,  have  been  too  eral   laws   are  often  wholly  inapplic- 

often    approved    to    require,    in   these  able  to  the  state  at  large,  and  it  has 

days,     any    reconsideration    of    their  accordingly  been  the  policy  of  our  law 

propriety   or   validity,    except   in   the  to  refer  to  the  wisdom  of  local  au- 

respect   to    decide    whether    the   ordi-  thority    questions    of    this    character, 

nance    brought    up    for    consideration  The    wants,    habits    of    thought,    and 

is  within   the  bounds   fixed  by   para-  even  the  prejudices  of  the  population 

mount  law,   constitutional,   statutory,  of   so   large   a   state   as   ours   are   so 

and  charter,  aided  by  judicial  decis-  variant  that  it  would  be  most  unwise 

ion."     Per  McClellan.  to  deal  with  all  alike.    We  think  that 

1.  Croker  v.  Camden  Board  of  Ex-  the   special   provision   in   the   charter 
cise,  73  N.  J.  L.  460,  63  Atl.  901.  was  intended  as  an  exception  to  the 

2.  Chaddoek  v.  State,  18  Tex.  App.  general  law."     Per  Hurt,  J. 

507.     The  court  said:   "There  can  be  3.  Newbern  v.   McCann,   105  Tenn. 

no  question  of  the  authority  to  thus  159,  58  S.  W.  114,  50  L.  R.  A.  476. 
delegate    special    powers    to    be    exer- 


§    K;(;]  MUNICIPAL  POWERS  AND  REGULATIONS.  ]S!) 

rules  and  ordinances  for  further  regulating  and  controlling  the 
liquor  traffic  for  the  preservation  of  peace  and  good  order,  and  a 
further  provision  authorizing  cities  to  pasa  ordinances  to  preserve 
the  health,  promote  prosperity,  and  improve  the  morals,  order, 
comfort  and  convenience  of  the  public  it  has  beer  decided  that  a 
city  council  may  pass  ordinances,  not  in  conflict  with  the  state 
Law,  regulating  the  closing  of  saloons  on  election  day.4  Lut  a 
municipality  which  is  empowered  by  statute  to  direct  all  saloons 
to  be  closed  "  temporarily  "  and  making  it  a  misdemeanor  to 
open  "  during  such  period  as  the  board  shall  so  forbid  "  has  no 
power  to  order  saloons  closed  "  until  further  notice,"  the  statute 
being  construed  as  requiring  the  time  to  be  specified  on  the  face 
of  the  order.5 

§  166.  Power   to    designate   hours    of    closing    and   opening    of 
saloons. 

Under  authority  conferred  on  a  city  to  license,  regulate,  and 
prohibit  the  sale  of  intoxicating  liquors,  the  municipal  authori- 
ties may  of  course  designate  the  hours  between  which  saloons  shall 
be  kept  closed.6  And  the  rule  is  unquestionably  supported  that 
under  the  power  conferred  upon  a  city  to  control,  regulate  or 
restrain  the  sale  of  intoxicating  liquors,  the  municipol  authorities 
may  designate  the  hour  at  night  at  which  a  saloon  shall  close 
and  at  which  it  may  open  in  the  morning,  subject,  however,  in 
all  cases  to  this  qualification  that  the  exercise  of  such  authority 
must  be  in  conformity  to  the  law  of  the  state  and  that  it  must  be 
a  reasonable  exercise  of  such  power,  that   is  the  hours  must  not 

4.  Iowa    City    v.    Mclnnerny,    114  6.  Ex  parte  Wolf,  14  Neb.  24.    Paul 

Iowa  586,  S7  X.  \V.   ins.  v.  Washington,  134  X.  C.  363,  47   S. 

"Near    beer  ".—Ordinance    as    to  E.   793,   65    L.   R.   A.   902. 

closing  place  on  election  day  for  sale  "  Near  beer.,,— City    may    require 

of    is   reasonable.     Campbell    v.    City  closing  during  nighl   hours  of  places 

of  Thomasville   (Go.  1900).  G4  S.  E.  where    sold.      Campbell    v.    City    of 

815.  Thomasville  (Ga.  1909),  64  S.  E.  815, 

•"•  State  v.  Strauss,  4'.'  Md.  288. 


11)0  MUNICIPAL  TOWERS  AND  REGULATIONS.  [§    167 

be  such  as  will  virtually  deprive  a  licensee  of  the  right  conferred 
by  his  license  from  the  state.7  Where  licensees  take  out  licenses 
to  engage  in  the  liquor  business  they  take  the  same  subject  to  the 
power  of  the  municipality  in  which  such  business  is  to  be  carried 
on  to  place  such  reasonable  regulations  upon  the  conduct  thereof 
as  may  be  conducive  to  the  public  welfare  and  good  order  of  the 
community.8  And  an  ordinance  is  not  void,  which  prescribes  the 
hours  during  which  saloons  shall  be  closed,  because  it  docs  not  in 
express  terms  repeal  the  provisions  of  a  prior  ordinance  which  is 
inconsistent  therewith,  but  the  former  ordinance  will  be  regarded 
as  repealed  by  implication,  the  same  principle  applying  as  in  the 
case  of  statutes,  that  is,  that  where  a  later  statute  contains  provi- 
sions which  are  repugnant  to  an  earlier  one,  it  repeals  it  by  implica- 
tion.9 

§  167.  Same  subject— ordinances  held  valid — instances. 

Under  a  statute  conferring  power  in  cities  to  regulate  the  sell- 
ing or  giving  away  of  spirituous  liquors  by  any  person  within  the 
city  other  than  those  duly  licensed  and  to  pass  such  ordinances  as 
may  be  expedient  in  maintaining  the  peace,  good  government, 
health  and  welfare  of  the  city,  an  ordinance  prohibiting  the 
dispensing  of  spirituous  liquors  between  certain  hours  of  the 
night,  requiring  the  closing  of  saloons,  and  the  removal  of  ob- 
structions from  the  interior  view  of  saloons,  is  authorized.10  And 
an  ordinance  of  the  board  of  excise  commissioners  of  a  city 
prohibiting  a  licensed  liquor  dealer  from  having  a  light  burning 

7.  Connecticut—  State  v.  Welch,  36  S'ew  Jersey.— State  v.   Borough  of 

2i5.  Washington,  44  N.  J.  L.  605. 

Georgia.— Morris  v.  City  Council  of  Wisconsin.— Village    of    Platteville 

Rome,  10  Ga.  532.  v.  Bell,  43  Wis.  488. 

Indiana.— Davis  v.  Fasig,  128  Ind.  8.  Thomas  v.  Saunders  (Fla.  1908), 

271,  27  N.  E.  726.  47  So.  796. 

Iowa.— City   of   Clinton   v.   Orusen-  *>•  Ex  parte  Wolf,  14  Neb.  24. 

dorf,  80  Town  117.  45  X.  W.  407.  *<>•  McNulty  v.  Toof,  116  Ky.  202, 

Kentucky.— McNulty    v.    Toof,    116  75  S.  W.  258. 
Ky.  202,  75  S.  W.  258. 


§   1G8J  MUNICIPAL  POWERS  AND  REGULATIONS.  191 

in  his  place  of  business  between  seven  o'clock  in  the  morning 
and  twelve  o'clock  midnight  on  Sunday  is  not  unreasonable.11 
And  where  a  statute  confers  no  affirmative  right  upon  the 
licensee  to  carry  on  his  business  up  to  any  certain  time  at  night,  it 
has  been  decided  that  a  city  under  power  to  pass  any  ordinance 
not  in  conflict  with  the  Constitution  of  the  United  States  or  of 
the  state  and  statutes  thereof  may  forbid  any  one  except  the 
proprietor  from  entering  the  place  where  such  business  is  carried 
on  between  nine  o'clock  at  night  and  five  o'clock  in  the  morning.12 

§  16G.  Same  subject — ordinances  held  invalid — instances. 

An  ordinance  forbidding  the  carrying  on  of  the  retail  liquor 
business  between  the  hours  of  six  in  the  afternoon  and  six  in  the 
morning,  has  been  held  to  be  unreasonable,  oppressive  and  in- 
valid, the  power  of  the  city,  it  is  declared,  being  limited  to  reason- 
able regulations  not  destructive  of  the  right  conferred  by  the 
state.13  And  a  municipality  which  has  granted  a  license  cannot 
require  all  saloons  to  close  and  not  to  make  any  sales  at  all  times 
when  "  any  denomination  of  Christian  people  "  are  holding  divine 
service  anywhere  in  the  town,  the  ordinance  being  silent  as  to 
any  and  all  other  worshippers.14  So  general  power  to  towns  "  to 
make  such  by-laws,  rules  and  regulations  for  the  better  govern- 
ment of  the  town  as  they  may  deem  necessary,"  does  not  empower 
a  town  to  pass  an  ordinance  forbidding  one  who  sells  liquor  to 
occupy  his  own  premises  between  certain  hours.1"'  And  a  village 
ordinance  requiring  all  saloons  to  be  closed  during  certain  hours 
"  unless  by  special  permission  of  the  president  "  is  void  in  that  it 
it  attempts  to  delegate  legislative  power  to  an  executive  officer 
and  because  it  attempts  to  give  him  arbitrary   power,   allowing 


11.  Croker  v.  Camden  Board  of  Ex-  (Tenn.)    228,   35   Am.  Rep.  700n. 
cise,  73  N.  J.  L.  4G0,  63  Atl.  901.  14.  Gilham  v.  Wells,  64  Ga.  192. 

12.  Thomas      v.      Saunders      (Fla.  IB.  State    v.    Thomas,    118    X.    C. 
1908),  47  So.  79G.  1221,  24  S.  E.  535. 

13.  Ward      v.      Mayor,      8      Baxt. 


19o  MUNICIPAL  POWERS  AND  REGULATIONS.  [§    169 

him  in  the  execution  of  the  ordinance  to  discriminate  among 
persons  similarly  situated.10  Again  where  an  ordinance  fixing 
the  hours  between  which  intoxicating  liquors  shall  not  be  sold 
contains  a  provision  prohibiting  druggists  from  dispensing 
spirituous  liquors  between  certain  hours  of  the  night,  such  pro- 
vision is  held  to  be  invalid,  a  druggist  not  being  allowed  by 
statute  to  dispense  liquors  at  any  time  as  a  drink  or  a  beverage.17 
And  an  ordinance  declaring  that  the  exit  or  entrance  of  any 
person  from  any  saloon  during  the  hours  specified  that  the  same 
shall  be  closed,  shall  be  prima  facie  evidence  of  its  violation  is 
invalid  as  an  attempt  to  legislate  on  the  weight  and  effect  of 
evidence.18 

§  169.  Ordinances  as  to  quantity. 

The  authority  of  a  city  to  legislate  in  regard  to  the  quantities 
in  which  liquors  may  be  sold  must  depend  upon  the  power  con- 
ferred. If  the  state  has  a  general  law  upon  the  subject  -then 
power  given  to  a  municipal  corporation  merely  to  regulate  and 
control  the  liquor  traffic  would  not  authorize  any  legislation  in- 
consistent therewith.  If  however  power  is  given  to  a  city  to 
prohibit  the  sale  of  liquors  in  addition  to  the  above  powers  then 
a  city  might  undoubtedly  pass  ordinances  relating  thereto  as  the 
power  to  prohibit  would  include  the  less  power  to  prescribe  the 
quantities  in  which  sales  may  be  made.  And  under  the  general 
power  to  regulate  and  restrain  a  city  would  be  authorized  to  pass 
such  ordinances  in  this  respect  as  are  not  inconsistent  with  the 
general  law  of  the  state  and  in  the  absence  of  any  state  law  upon 
the  subject  then  a  reasonable  ordinance,  not  prohibitive  in  char- 
acter, would  probably  be  sustained.  Thus  where  power  is  con- 
ferred upon  a  city  to  pass  such  ordinances  not  inconsistent  with 
the  laws  of  the  state  as  may  be  expedient  for  maintaining  the 

10.  Little  Chute  v.  Van  Camp,  136       75  S.  W.  258. 
Wis.  520,  117  X.  W.  1012.  18-  McNulty  v.  Toof,  116  Ky.  202, 

17.  McNulty  v.  Toof,   116  Ky.  202,       75  S.  W.  258. 


§   170]  MUNICIPAL  POWERS  AND  REGULATIONS.  lij.i 

peace,  good  government  and  welfare  of  the  city  and  its  trade 
and  commerce,  an  ordinance,  limiting  the  quantity  in  which  a 
certain  specified  liquor  may  be  sold  is  held  to  be  valid.11'  And 
the  fact  that  the  legislature  has  defined  a  dram  shop  as  "  a  place 
where  spirituous,  or  vinous,  or  malt  liquors  are  retailed  by  less 
quantity  than  one  gallon"  and  has  enacted  certain  laws  relative 
to  it  as  regulating  the  dram  shop  business  does  not  prevent  a  city, 
to  which  power  is  granted  to  license,  regulate  and  prohibit  the 
sale  or  giving  away  of  intoxicating  liquors,  from  conferring  by 
ordinance  upon  the  holder  of  a  license  to  keep  a  dram  shop  the 
power  to  sell  liquor  in  any  quantity  other  than  the  quantity 
specified  by  the  definition.20  Again  a  regulation  that  liquors 
shall  not  be  sold  in  less  than  a  certain  quantity  and  shall  not  be 
drank  at  the  place  of  sale  is  said  to  violate  no  private  rights  and 
not  to  unreasonably  or  improperly  restrain  trade.21 

§  170.  Ordinance  as  to  who  may  conduct  business. 

In  the  absence  of  any  general  law  of  the  state  restricting  the 
power  of  a  municipal  corporation  or  of  any  other  limitation  upon 
its  authority,  it  is  within  the  power  of  such  a  corporation  to 
provide  by  an  ordinance  which  is  uniform  in  its  operation  as  to 
the  classes  of  persons  by  whom  the  traffic  may  be  conducted. 
And  such  an  ordinance  which  affects  all  persons  of  a  certain 
class  or  classes  uniformly  is  not  void  on  the  ground  of  discrimina- 
tion.22    And  in  this  connection  it  has  been  held  proper  for  a 


19.  Monroe    v.    City    of    Lawrence,  1900),  64  S.  E.  815. 

44  Kan.   607,  24   Pac.   1113;   followed  2©.  Strauss    v.    City   of   Galesburg, 

in    In    re    Jahn    Petitioner,    55    Kan.  203    111.    234,    07    N.    E.    836.      See 

694,   11    Pac.  956.  Gunnarssohn  v.  City  of  Sterling,  92 

"Near  beer  ".—An   ordinance  pro-  111.   569. 

hibiting  the  sale  of  in  quantities  less  21.  Monroe  v.  City  of  Lawrence,  44 

than  a  pint  has  been  held  reasonable  Kan.  607.  24  Pac.   1113. 

while  a   prohibition  of  sale  of  more  --•  Foster  v.  Board  of  Police  Com- 

than  one  quart  to  the  same  person  in  missioners,  102  Cal.  4S3,  37  Pac.  763, 

one  day  has  been  held  unreasonable."  41  Am.  St.  Rep.  104. 
Campbell  v.  City  of  Thomasville  (Ga. 


194:  MUNICIPAL  POWERS  AND  PECULATIONS.    [§§    171?  172 

municipal  corporation   to  provide  by  ordinance  as  to  the  class 
of  persons  by  whom  sales  of  "  near  beer  "  may  be  made.23 

§  171.   Ordinances  as  to  access  of  officials  to  premises. 

It  has  been  held  to  be  a  legitimate  exercise  of  the  police  power 
vested  in  the  state  to  authorize  certain  officials  in  cities  and  towns 
to  enter  upon  the  premises  of  any  person  licensed  to  sell  intoxi- 
cating liquors  to  ascertain  the  manner  in  which  he  conducts  his 
business  and  to  preserve  order.24  So  a  city  may,  under  authority 
to  license  and  regulate  or  prohibit  saloons  provide  by  ordinance 
that  the  excise  inspector  shall  at  all  times  have  access  to  all 
licensed  saloons,  excepting  between  certain  hours  when  the  saloons 
are  by  law  required  to  be  closed.25 

§  172.  Ordinances  affixing  penalty. 

Where  a  general  statute  defines  an  offense  and  expressly  limits 
the  municipality  in  fixing  the  penalty  in  an  ordinance  as  to  the 
offense  to  the  amount  fixed  by  statute,  the  ordinance  should  con- 
form thereto.26  But  in  this  connection  it  has  been  decided  that 
where  authority  is  conferred  upon  a  municipal  corporation  to 
suppress  and  prohibit  the  sale  of  intoxicating  drinks,  as  well  as 
to  license  the  same,  an  ordinance  which  imposes  a  penalty  for 
selling  such  drinks  without  a  license,  which  penalty  exceeds  that 
fixed  by  the  general  law  is  reasonable,  there  being  no  limitation 
upon  the  power  of  the  municipality  in  this  respect.27 

23.  Campbell    v.    City    of    Thomas-  under   which   it   is   granted,   and   the 
ville  (Ga.  1909),  64  S.  E.  815.  stipulations  of  the  bond  executed  by 

24.  Commonwealth  v.  Dueey,  12G  the  licensee  himself."  Per  Gray,  C.  J. 
Mass.  260,  wherein  it  was  said:  "It  25.  Croker  v.  Camden  Board  of  Ex- 
is  but  a  reasonable  exercise  of  the  cise,  73  N.  J.  L.  460,  63  Atl.  901. 
police  power,  to  preserve  the  public  26.  Mullins  v.  City  of  Lancaster, 
peace  and  to  see  that  the  business  23  Ky.  Law  Rep.  436,  63  S.  W.  475. 
carried  on  in  the  buildings  described  27.  Deitz  v.  City  of  Central,  1  Colo, 
in  the  several  licenses  is  conducted  323.  See  also  City  of  Pekin  v. 
according  to  the  conditions  of  the  Smelzel,  21  111.  464,  74  Am.  Dec.  105. 
license,   the   provisions   of  the   statue 


§    173J  TAXES— LEGISLATIVE  POWERS.  l'j.j 


CHAPTER  VIII. 

TAXES— LEGISLATIVE  POWERS. 

Section  173.  Taxation  of  traffic  generally. 

174.  May  levy  tax  though  traffic  prohibited. 

175.  Classification    by    legislature — population    of    cities    and   towns 

as  basis. 

176.  Taxation  based  on  amount  of  business. 

177.  Classification  based  on  different  kinds  of  liquors. 

178.  Classification  of  wholesalers,  retailers  and  manufacturers. 

179.  Discrimination  against  liquors  manufactured  in  other  states. 

180.  Statutes  making  tax  a  lien. 

181.  Disposal  of  taxes  and  license  fees  dependent  on  statute. 

182.  Same  subject  continued. 

183.  Regularity  of  proceeding  in  levying  tax — presumption. 

Sec.  173.  Taxation  of  traffic  generally. 

The  state  may  in  the  exercise  of  its  police  power  and  as  a  mat- 
ter  of  police  regulation  or  for  the  purpose  of  revenue  impose  a  tax 
upon  the  business  of  trafficking  in  intoxicating  liquors.1     And  the 

1.  Arkansas. — Straub  v.  Gordon,  27  penalties  for  its  non-payment   or  for 

Ark.  025.  a  refusal  to  furnish  the  requisite  in- 

Qeorgia. — Brown    v.    State,    73    Ga.  formation  to  the  assessor  to  make  his 

38;    Bohler  v.   Schneider,  40  Ga.   195.  statement    of    the    return    or    to    Bign 

Louisiana. — State  v.  Volkman,  20  and  verify  the  same.  Adler  v.  Whit- 
La.  Ann.  585.  beck,  44  Ohio  St.  539,  9  N.  E.  072. 

Michigan. — Westinghausen   v.    Peo-  Property     not     to     be      twice 

pie,   II  Mich.  265,  6  N.  W.  641.  taxed  for  same  privilege.— A  safe 

O/, ;0. — Seinor     v.     Ratterman,     44  and    sound    rule    of    construction    of 

Ohio  St.  601,  11  N.  E.  321.  revenue   laws    is   to    hold    in    the    ab- 

fexas. — Napier  v.   Hodges,  31  Tex.  Bence   of  express   words   disclosii 

287;     State    v.    Bock,    9    Tex.    369;  differenl  intent,  thai  they  are  not  in- 

Tonella  v.  State.  4  Tex.  A.pp.  325.  tended  to   subject    the  same  property 

A    statute   may    impose    a    tax  to    be    twice    charged    for    the    Bame 

and  provide  for  its  collection  as  tax,    nor    the    same    business    to    be 

other  taxes  are  collected  and  impose  twice    taxed    for   the   exercise   of    the 


196 


TAXES— LEGISLATIVE   POWERS. 


[§  173 


state  may  impose  a  tax  on  licenses  and  privileges  to  sell  liquor 
and  suck  an  enactment  does  not  violate  a  constitutional  provision 
that  "  all  moneys  received  for  licenses  granted  under  the  general 
laws  of  the  state  for  the  sale  of  intoxicating  liquors  "  shall  be 


same    privilege.      Bell    v.    Watson,    3 
Lea    (Tenn.),   328.      Per   Cooper,   J. 

Thus  where  the  occupation  of  drug- 
gists was  taxed  and  a  law  was  also 
in  force  which  provided  for  a  tax  on 
those  engaged  in  the  liquor  traffic  and 
declared  that  it  should  apply  to  all 
druggists  it  was  held  that  a  druggist 
was  not  subject  to  the  payment  of 
such  tax  unless  he  also  sold  liquors. 
The  Druggist  Cases,  85  Tenn.  449,  3 
S.   W.   490. 

Municipalities  have  no  inher- 
ent right  to  decide  for  themselves 
what  taxes  shall  be  levied  for  the 
general  purposes  of  local  government 
and  it  is  not  therefore  a  valid  objec- 
tion to  local  liquor  taxes  that  the 
municipality  is  not  consulted  in  their 
levy.  Youngblood  v.  Sexton,  32  Mich. 
40G,   20  Am.   Rep.   654. 

Adoption  of  local  option— 
•when  exempts  from  state  law.— 
Where  the  statutes  providing  for  the 
adoption  of  a  local  option  law  permits 
the  sale  of  liquors  for  certain  purposes 
in  the  locality  where  such  law  may  be 
adopted,  by  such  act  the  persons  who 
are  permitted  to  sell  for  such  pur- 
poses are  held  to  be  relieved  from  the 
payment  of  a  tax  provided  for  by 
another  general  law  as  to  licensing 
and  taxing  the  traffic.  Rathburn  v. 
State,  88  Tex.  281,  31  S.  W.  189. 

Injunction  against  enforce- 
ment of  tax  law. — The  same  objec- 
tions are  held  to  apply  to  the  grant- 
ing of  an  injunction  against  the  en- 
forcement of  a  liquor  tax  law  as  ap- 
ply to  the  granting  of  an  injunction 
against  any  other  tax  or  revenue  law, 
whether  the  liquor  law  is  strictly  a 


tax  law  or  not  one  of  its  objects  at 
least  being  to  raise  a  revenue  to  de- 
fray state  and  local  expenses.  Ba- 
logh  v.  Lyman,  6  App.  Div.  (N.  Y.) 
271,  39  N.  Y.  Supp.  780. 

An  order  of  county  authori- 
ties imposing  a  tax  on  the  liquor 
traffic  need  not  specify  the  particu- 
lar purposes  for  which  the  tax  was 
levied  where  the  statute  under  which 
it  is  imposed  does  not  require  the 
same  in  terms  or  effect.  Parker  v. 
Commissioners,  104  N.  C.  166,  10 
S.  E.   137. 

A  tax  on  a  business  of  a  speci- 
fic annual  sum  is  not  a  state 
specific  tax  when  it  is  assessed  and 
collected  locally  and  appropriated  to 
local  purposes,  though  collected  un- 
der a  general  state  law.  Youngblood 
v.  Sexton,  32  Mich.  406,  20  Am.  Rep. 
654. 

An  act  reciting  the  necessity  of 
maintaining  police,  and  author- 
izing a  borough  for  the  purpose  of 
maintaining  such  police  to  assess  upon 
each  keeper  of  a  saloon  a  certain  tax 
to  be  levied  as  other  taxes  in  the 
borough  has  been  constitutional. 
Durach's  Appeal,  62  Pa.  St.  491. 

Listing  of  persons  for  assess- 
ment of  mulct  tax. — In  Iowa  it  is 
decided  that  should  the  assessor  fail 
to  return  a  list  of  the  persons  engaged 
in  the  sale  of  intoxicating  liquor  and 
a  description  of  the  property  wherein 
the  business  is  carried  on,  as  re- 
quired by  statute,  any  three  citizens 
of  the  county  may  procure  the  listing 
of  such  persons  and  places  for  the 
purpose  of  assessing  the  mulct  tax 
and   that    it    is    no    objection    to    the 


v     174]  TAXKS      LKCISLATIVK    I'OWKKS.  197 

devoted  to  a  purpose  different  from  thai  specified  in  such  act.2 
And  the  fact  that  those  who  traffic  in  liquors  are  required  to  pay 
their  tax  in  advance  for  the  term  of  a  year,  while  taxes  on  other 
occupations  may  be  paid  quarterly  docs  not  violate  a  constitu- 
tional provision  requiring  uniformity  of  taxation.'5  So  the  legis- 
lature may  tax  the  liquor  traffic,  and  a  statute  to  this  effect  is  not 
subject  to  the  objection  that  it  is  not  uniform  in  its  operation 
because  it  is  not  levied  in  proportion  to  the  business  done.  It  is 
uniform  where  it  levies  the  same  sum  upon  every  person  engaged 
in  the  traffic.4  Again  a  law  imposing  such  a  tax  which  operates 
generally  throughout  the  state  is  not  subject  to  the  objection  that 
it  is  a  special  law.5  In  taxing  the  liquor  traffic  the  procedure 
pointed  out  by  the  statute  for  accomplishing  this  result  must  be 
strictly  pursued.6 

§  174.  May  levy  tax  though  traffic  prohibited. 

A  business  which  is  prohibited  may  be  taxed,  and  the  fact  that 
a  business  is  prohibited  and  that  no  license  can  be  obtained  au- 
thorizing it  is  declared  to  be  no  defense  to  an  action  to  collect  the 
tax  imposed  upon  one  engaged  in  it.7  So  though  under  the  pro- 
validity  of  the  tax  that  the  same  was  the  husiness  of  liquor  selling  was  pro- 
assessed,  pursuant  to  such  listing,  hibited  within  a  certain  distance  of 
after  the  expiration  of  the  time  to  a  schoolhouse  and  its  conduct  was 
which  the  tax  relates.  National  Loan  made  a  misdemeanor,  yet  that  a  stat- 
&  Ins.  Co.  v.  Board  of  Supervisors,  ute  imposing  a  privilege  tax  upon 
138  Iowa  11.  115  X.  W.   ISO.  persons  selling  liquor  applied  to  one 

2.  Portwood    v.    Baskett,    04    Miss.      engaged  in  the  business  in  such  pro- 
213,  1  So.  105.  hibited  territory. 

3.  Fahey    v.    State,    27    Tex.    App.  Levying  a  tax  not  a  license. — A 
in;.  11  S.  W.  108.                                         statute  levying  a   tax  upon  the  busi- 

4.  Youngblood  v.  Sexton,  32  Mich.      ness  of  selling  intoxicating  liquor-  i- 
400,  20  Am.  Rep.  654.  a   valid  exercise  of  the  power  vested 

*>•  Brown  v.  State,  73  da.  38.  in  the  legislature  and  is  not  a  viola- 

<>•  National     Loan    &     Ins.    Co.    v.  tion  of  a  constitutional  provision  that 

Board  of  Supervisors,  134  Iowa  527,  no   license  to   traffic   in   Buch    liquors 

111  X.  VY.   1009.     See  State  v.  Cloud,  shall  be  granted.     Adler  v.  Whitbeck, 

0  Ala.  028.  44  Ohio   St.   539,   *>   X.   E.   672. 

7.  Foster  v.    Speed.    120  Tenn.   4 7 ' >.  So  a  statute  which  merely  fixes  the 

111   S.  W.  925;  holding  that  though  amount    of    tax    to   be    collected    for 


198  TAXES— LEGISLATIVE   POWERS.  [§    174 

visions  of  a  law  the  carrying  on  of  the  liquor  business  is  pro- 
hibited in  a  certain  locality,  yet  where  it  is  carried  in  such 
locality  in  violation  of  the  law,  the  fact  of  the  prohibition  does  not 
relieve  from  the  liability  to  pay  a  tax  imposed  by  a  state  law 
which  is  general  in  its  operation.8  And  a  state  may  make  an 
assessment  upon  the  traffic  in  intoxicating  liquors  although  it  is 
carried  on  in  violation  of  a  municipal  ordinance.9  And  a  con- 
stitutional provision  prohibiting  the  legislature  from  authorizing 
"  the  grant  of  license  for  the  sale  of  ardent  spirits  or  other  in- 
toxicative  "  does  not  preclude  the  taxing  of  the  liquor  traffic,  it 
being  declared  that  a  tax  is  not  a  license,  in  either  the  legal  or 
common  understanding  of  that  term.10  But  where  the  con- 
stitution provided  that  no  license  to  traffic  in  intoxicating  liquors 
should  thereafter  be  granted,  a  statute  was  held  to  be  void  as 
being  violative  of  such  provision  which  was  entitled,  "  An  act 
more  effectually  to  provide  against  the  evils  resulting  from  the 
traffic  in  intoxicating  liquors  "  and  which  required  the  payment  of 
a  certain  sum  annually  by  every  person  engaged  in  such  traffic, 
the  execution  of  a  bond  by  such  a  person  and  which  further  made 
it  a  misdemeanor  to  engage  in  such  traffic  without  executing  a 
bond  or  after  the  bond  had  been  adjudged  forfeited,  it  being 
declared  that  the  statute  was  in  its  operation  and  effect  a  license 
as  to  a  traffic  prohibited  by  the  constitution.11 

licenses   to   sell   liquor   does   not   au-  therein,  or  the  sale  thereof  be  regu- 

thorize  the  granting  of  such  licenses  lated.      But   nothing   herein   shall   be 

when  not  otherwise  authorized  by  law.  construed  to  interfere  with  or  repeal 

Eodges    v.    Metcalfe    County    Court,  any  law  in  force  relating  to  the  sale 

117  Ky.  619,  78  S.  W.  177,  460.  or  gift  of  such  liquors."     Ky.  Const., 

This  was  decided  under  the  provi-  §  61. 

sion  of  the  Kentucky  constitution  as  8.  Stevenson  v.  Hunter,  5  Ohio  Dec. 

follows:  ''The  general  assembly  shall,  27. 

by     general     law.     provide    a     means  »•  Conwell  v.  Sears,  65  Ohio  St.  49, 

whereby   the   sense   of  the   people    of  61  N.  E.  155. 

any    county,    city,    town,    district    or  *<>•  Youngblood  v.  Sexton,  32  Mich. 

precinct  may  be  taken  as  to  whether  406,  20  Am.  Rep.  654. 

or  not  spirituous,  vinous  or  malt  liq-  H«  State  v.  Hipp,  38  Ohio  St.  199, 

uors  shall  be  sold,  bartered  or  loaned  followed  in   State  v.   Sinks,  42  Ohio 


TAXES  -LEGISLATIVE    I'OWKUS. 


V.iU 


§    IT.",] 

§  175.  Classification  by  legislature — Population  of  cities  and 
towns  as  basis. 
The  legislature  has  power  to  classify  the  liquor  traffic  for  the 
purposes  of  taxation,  subject  to  the  limitation  thai  the  classifica- 
tion must  be  reasonable  and  not  arbitrary,  and  when-  it  is  not 
such  it  is  competent  for  the  legislature  to  make  provisions  for 
enforcing  the  payment  of  the  tax  imposed.12  Thus  it  is  com- 
ix tent  for  the  legislature  to  classify  cities  and  towns  for  the  pur- 
pose of  assessing  the  license  fee  or  tax  to  be  paid  by  those  who 
traffic  in  liquor,  graduating  the  fee  or  tax  in  proportion  to  the 
population.13     And  a  general  state  excise  law,  although  it  grad- 


St.     345    which    overruled    State    v. 
Frame,  39  Ohio  St.  399. 

12.  Carroll  v.  Wright,  131  Ga.  728, 
63  S.  E.  2G0.  See  State  v.  Doherty, 
3  Eda.  384,  29  Pae.  855. 

See  also  Arizona  v.  Connell,  2  Ariz. 
339,  16  Pac.  209,  wherein  it  is 
declared  that  the  legislature  may 
classify  those  engaged  in  liquor  traf- 
fic to  impose  a  license  fee  which  dif- 
fers according  to  the  different  classes 
is  valid  so  long  as  the  fee  is  uniform 
as  to  each  class. 

13.  Alabama. — Ex  parte  Marshall, 
G4   Ala.   266. 

Idaho. — Normoyle  v.  Latah  County, 
5  Ida.  19,  46  Pac.  831,  construing 
Ida.  Sees.   Laws,   1895,  p.  82. 

Minnesota. — Kelly  v.  City  of  Fari- 
bault, 83  Minn.  9,  85  N.  W.  720,  con- 
struing Minn.  Laws,  1887,  c.  5,  §  2 
(G.  s.  1894,  §  2(123). 

New  York. — People  v.  Hilliard,  85 
App.  Div.  (X.  Y.)  507.  83  X.  Y. 
Supp.  204,  construing  New  York  Liq- 
uor Tax  Law:  Matter  of  Lyman.  26 
Misc.  R.  (X.  Y.)  629,  57  X.  Y.  Supp. 
869. 

Pennsylvania. — Commonwealth  v. 
McGroarty,  148  Pa.  St.  606,  2  f  Atl. 
91;  Commonwealth  v.  Smoulter,  126 
Pa.  St.  137,  17  Atl.  532. 


Wisconsin. — State  v.  Keaough.  68 
Wis.    135,  31   X.   W.  723. 

A  liquor  law,  applicable  under 
different  conditions  to  countries 
having  different  classes  of  cities, 
is  not  special  or  local  legislation,  as 
prohibited  by  the  constitution,  but 
such  a  classification  is  reasonable  and 
natural  when  applied  to  any  police 
measure.  Board  of  Trustees  v.  Scott, 
30  Ky.  Law  Rep.  894,  101  S.  \\  . 
944. 

Judicial  notice  as  to  popula- 
tion.— Where  a  statute  provides  that 
cities  and  towns  shall  be  classified 
according  to  their  population  and 
the  record  in  a  case  does  not  dis- 
close the  population  of  a  town  the 
court  will  take  judicial  notice  that 
a  town  of  a  certain  class  does  not 
exceed  the  population  designated  for 
that  class  by  the  statute.  Schweir- 
nian  v.  Town  of  Highland  Park  (Ky. 
i'.   A.   1908),   11.".  s.  W.  r,ii7. 

The  word  "  borough  "  con- 
strued as  used  advertently  in 
subd.  1,  S  11.  of  the  Liquor  Tax 
Law  of  Xew  York  so  as  to  effectuate 
the  purpose  of  the  legislature  indi- 
cated by  subd.  7.  of  S  11.  oi 
law  which  increased  the  excise  taxes 
one-half  in  cities  containing  a   popu- 


200 


TAXES— LEGISLATIVE   POWERS. 


[§   1T6 


nates  excise  taxes  in  cities  according  to  their  population  but  does 
not  follow  the  classification  of  cities  given  in  the  constitution,  is 
not  a  special  city  law  and  does  not  relate  to  the  "  property,  affairs 
or  government  "  of  cities  so  as  to  bring  it  within  the  provisions  of 
the  constitution  respecting  the  classification  of  cities  and  the 
reference  of  special  city  laws  to  the  mayors  of  the  cities  affected 
thereby.14 

§  176.  Taxation  based  on  amount  of  business. 

The  legislature  in  the  exercise  of  its  power  to  impose  a  tax 
upon  the  the  liquor  traffic  and  to  classify  the  traffic  for  that  pur- 
pose may  provide  that  the  amount  of  its  tax  is  to  be  determined 
on  the  basis  of  the  amount  of  business  done  and  such  a  law  is  not 
subject  to  the  objection  that  it  is  not  uniform.15  And  a  tax  the 
amount  of  which  is  based  upon  the  extent  or  magnitude  of  the 
dealer's  business  is  not  by  that  fact  rendered  a  tax  upon  the  capi- 
tal invested  and  is  nevertheless  a  tax  upon  the  trade  or  occupation 
of  the  dealer.16     Where  a  tax  is  to  be  assessed  upon  the  purchase 


lation  of  fifteen  hundred  thousand  or 
over  formed  by  the  consolidation  of 
territory  situate  in  one  or  more  coun- 
ties and  containing  several  boroughs. 
People  v.  Hilliard,  85  App.  Div. 
(N.  V.)    507,  83  N.  Y.  Supp.  204. 

The  proper  proof  of  the  popu- 
lation of  a  city,  where  cities  are 
classified  affording  to  population,  is 
the  last  state  or  federal  census. 
Lyman  v.  McGreivey,  25  App.  Div. 
(N.  Y.)    08,  48  X.  Y.  Supp.  1035. 

In  Iowa  it  is  decided  that  in  pro- 
ceedings  under  a  statute  allowing  the 
licensing  of  saloons  in  rit io^  of  a  cer- 
tain population  or  over  upon  the  peti- 
tion of  a  majority  of  the  people  of 
the  city  the  official  register  of  the 
state  is  conclusive  evidence  as  to 
the  number  of  inhabitants  in  the  city 


for  which  the  petition  is  filed.  In  re 
Sale  Intoxicating  Liquors,  108  Iowa 
368,  79  X.  W.  260. 

1-*.  People  v.  Murray,  149  X.  Y. 
367,  44  X.  E.   146,   32  L.  R.  A.  344. 

15.  Parish  of  East  Feliciana  v. 
Gurth,  26  La.  Ann.  140;  See  Ex  parte 
Marshall,  64  Ala.  266. 

A  contrivance  known  as  a 
"  register "  or  "  bell  punch  " 
which  each  dealer  in  intoxicating 
liquors  is  required  to  furnish  at  his 
own  expense  for  the  purpose  of  keep- 
ing count  of  the  drinks  sold  so  as  to 
adjust  the  tax  he  is  to  pay  may  be 
required  by  statute.  Albrecht  v. 
State,  8  Tex.  App.  216,  34  Am.  Rep. 
737. 

16.  Albertson  v.  Wallace,  81  X.  C. 
479. 


§   177] 


TAXES— LEGISLATIVE   POWERS. 


L'Ul 


price  of  liquor  it   is  not   to  be  assessed  niton  the  price  less  the 

amount  of  internal  revenue  tax.1' 

§  177.  Classification  based  on  different  kinds  of  liquors. 

Under  a  constitutional  provision  giving  the  legislature  power  to 
tax  "  liquor  dealers  "  the  legislature  may  classify  different  kinds 
of  liquors  and  impose  different  taxes  upon  the  different  classes.18 

So  an  act  entitled  "  An  act  relating  to  revenue  and  taxation, 
providing  for  license  taxes  on  compounded,  rectified,  adulterated 
or  blended  distilled  spirits,  known  and  designated  as  single  stamp 
spirits,  and  providing  penalties  for  violations  of  its  provisions  " 
is  not  invalid  in  that  it  requires  the  license  tax  to  he  paid  by  the 
rectifier  upon  the  amount  of  rectified  spirits  which  he  makes  by 
blending  distilled  spirits  known  as  single  stamp  spirits,  while 
he  is  not  taxed  at  all  on  rectified  spirits  which  he  makes  by  using 
double  stamp  spirits ;  it  being  declared  that  the  act  was  not  aimed 
at  the  spirits  used  in  rectifying  but  that  the  thing  in  the  mind  of 
the  legislature  was  the  business  of  rectifying  and  not  the  charac- 
ter of  the  spirits  used.19 


17.  Williams  v.  Commissioners,  132 
N.  C.  300,  43  S.  E.  806. 

!«•  Timm  v.  Harrison,  109  111. 
593. 

A  constitutional  provision  declar- 
ing in  substance  that  government 
ought  not  to  be  for  the  particular 
benefit  of  any  class  is  not  violated  by 
a  statute  which  permits  sales  of  cider 
'•  by  the  barrel  by  fanners  who  rai>e 
sufficient  apples  to  make  the  cider 
which  they  sell"  as  it  does  not  give 
to  farmers  a  privilege  denied  to 
others  who  raise  apples,  and  anyone 
is  a  farmer  within  this  meaning  of 
this  clause  who  has  land  upon  which 
there  are  trees  producing  apples. 
state  v.  Hazelton,  7S  Vt.  467,  63  Atl. 
30.1. 

Words  "  spirituous,  vinous, 
malt       or       other       intoxicating 


liquors "  as  used  in  a  statute  im- 
posing a  tax  on  such  liquors  are  to 
be  construed  as  not  including  non- 
intoxicating  malt  liquors.  Murray 
v.  Lafollette,  31  Ohio  C.  C.  247. 
The  court  said,  per  Laubie,  J.: 
Here  "malt  or  other  intoxicating 
liquors"  are  coupled  together. 
Neither  spirituous,  vinous  nor  malt 
is  a  distinct  part  of  the  sentence, 
but  are  coupled  with,  and  their  mean- 
ing can  be  ascertained  only  by  refer- 
ence to  the  words  ''  or  other  intoxi- 
cating  liquors,"  so  that,  *  *  * 
where  all  arc  associated  together,  are 
combined  together,  they  frame  but 
one  intent,  purpose  and  meaning, 
and  that  is  to  levy  a  tax  upon  traf- 
ficking in  intoxicating  liquors,  as 
specified  in  the  title." 

10.  Brown-Foreman     Co.     v.     Com- 


202 


TAXES— LEGISLATIVE   POWERS. 


[§   178 


§  178.  Classification  of  wholesalers,  retailers  and  manufacturers. 

The  power  of  the  legislature  to  classify  the  liquor  traffic  for 
the  purpose  of  imposing  a  tax  or  license  fee  also  extends  to  the 
right  to  make  a  classification  dependent  on  the  character  of  the 
business  which  is  carried  on,  such  as  imposing  upon  a  wholesale 
dealer20  a  tax  or  license  fee  which  differs  in  amount  from  that 


monwealth,    30    Ky.    Law    Rep.    793, 
101   S.  W.  321. 

The  term  "  single  stamp  spirits " 
as  used  in  the  Kentucky  statute  im- 
posing a  tax  on  the  business  of  com- 
pounding, rectifying,  adulterating  or 
blending  distilled  spirits  known  as 
such  is  not  confined  to  whisky  but 
includes  any  distilled  spirits,  alco- 
holic and  used  as  a  beverage  whether 
single  stamped  or  double  stamped. 
Bouvier  Specialty  Co.  v.  James  (Ky. 
C.  A.  1909),  118  S.  W.  381. 

20.  Law  meed  not  define  a. 
wholesale  dealer.  A  tax  on 
wholesale  dealers  is  not  void  on  the 
ground  that  the  law  does  not  define 
what  constitutes  a  wholesale  dealer 
but  the  question  whether  a  person 
is  such  so  as  to  come  within  the 
meaning  the  law  imposing  the  tax 
is  one  of  fact  to  be  determined  like 
other  facts.  Bohler  v.  Schneider,  49 
Ga.    195. 

A  special  tax  on  wholesale 
dealers  in  malt  liquors  is  not  in 
violation  of  a  Constitutional  provi- 
sion that  "  taxation  on  property  shall 
be  ad  valorem  only  and  uniform  on 
all  species  of  property  taxed. 
Bohler  v.   Schneider,  49  Ga.   195. 

An  ordinance  which  puts 
wholesale  dealers  in  malt 
liquors  in  one  class  and  imposes 
:i  license  fee  or  tax  upon  them  but 
imposes  no  tax  upon  such  dealers  in 
wines,  whiskies  and  other  liquors, 
is  to  be  construed  as  a  classification 
of  occupations  and  is  not  void  on  the 
ground  of  discrimination.     Cooper  v. 


City  of  Hot  Springs  (Ark.  1908),  111 
S.  W.  997. 

Where  a  statute  imposing  a 
tax  upon  wholesale  dealers  in 
lager  heer  exclusively  provides  that 
any  brewery  may  sell  the  beer  of  its 
own  production  at  wholesale  with- 
out taking  out  the  license  provided 
it  has  paid  a  license  as  a  brewery  and 
there  is  no  limitation  in  the  statute 
as  to  the  right  to  sell  within  the 
state  it  has  been  decided  that  the  law 
will  not  be  construed  as  requiring  a 
brewery,  which  has  paid  the  license 
in  the  county  in  which  it  is  located 
to  take  out  a  license  if  it  desires  to 
sell  in  another  county  of  the  state. 
State  v.  Capitol  Brew.  &  I.  Co.  (Ala. 
1909),  50  So.  312. 

Liability  to  more  than  one 
tax. — In  Georgia  it  has  been  decided 
that  under  the  statute  where  a  brew- 
ing company  which  was  engaged  in 
the  manufacture  of  beer  in  that  state 
paid  the  special  tax  imposed  upon  it 
in  the  county  where  its  principal  of- 
fice was  located,  it  was  not  liable 
also  to  pay  an  additional  tax  in  an- 
other county  of  the  state  because  it 
stored  beer  in  such  latter  county  and 
filled  orders  taken  by  an  agency 
located  therein.  Whittlesey  v.  Acme 
Brewing  Co.,  127  Ga.  208,  56  S-  E. 
299. 

Where  there  is  no  provision 
requiring  a  wholsaler  to  take 
out  a  license  for  selling  in  excess  of 
a  certain  quantity  a  statute  requir- 
ing licenses  for  sales  in  less  than 
that    quantity    does    not    affect    him. 


178] 


TAXES     LEGISLATIVE   POWERS. 


203 


imposed  upon  a  retail  dealer  or  by  statutes  surrounding  the  ob- 
taining of  a  license  or  the  carrying  on  of  the  traffic  by  the  former 
with  conditions  varying  from  those  which  are  applicable  to  the 

latter.-1  In  some  states  also  manufacturers  of  intoxicating  liquors 
are  also  put  in  a  class  by  themselves  or  subject  to  conditions  in 
connection  with  the  right  to  manufacture  or  sell  which  apply  to 
them  alone.--     Again  in  .some  states  a  wine  grower  i.~  permitted 


Hunter  v.  State,  79  Ga.  3G5,  5  S.  E. 
134. 

Where  a  statute  requiring 
that  a  license  be  taken  out  by 
any  person  selling  intoxicating 
liquors  is  general  in  its  nature  and 
contains  no  exception  in  favor  of 
wholesalers,  they  will  be  subject  to 
its  provisions.  State  v.  Cummings, 
17  Neb.  311,  22  X.  W.  545.  See 
Senior  v.  Ratterman,  44  Ohio  St. 
6G1,   11  N.  E.   321. 

A  constitutional  provision 
that  "  no  license  to  traffic  in  intoxi- 
cating liquors  shall  hereafter  be 
granted  in  this  state;  but.  the  general 
assembly  may,  by  law,  provide 
against  evils  resulting  therefrom" 
applies  as  well  to  the  wholesale  as 
the  retail  traffic  in  such  liquors. 
Senior  v.  Ratterman,  44  Ohio  St. 
661,  11  X.  E.  321. 

21.  See  Statev.  Stiefel,74  Md.  546, 
22  Atl.  1.  State  v.  Schroeder,  43 
Minn.  231,  45  X.  W.  149:  Jung 
Brewing  Co.  v.  Talbot,  59  Ohio  St. 
511,  53  X.  E.  51. 

When  brewer  subject  to  tax 
as  wholesaler. — Where  brewers  are 
requested  to  pay  a  license  tax  to 
carry  on  the  business  of  manufactur- 
ing and  by  another  statute  it  is 
provided  that  wholesalers  of  spiritu- 
ous liquors  and  beer  shall  pay  a  tax 
"in  addition  to  all  other  taxes,"  n 
brewer  it  is  held  must  also  pay  the 
latter  tax  to  entitle  him  to  sell  his 
product       at       wholesale.     State       v. 


Schmulbach  Brewing  Co.,  50  \V.  Va. 
333,  49  S.  E.  249. 

Where  a  contract  between  a  brew- 
ing company  and  the  contractee  pur- 
ported to  appoint  the  latter  an  agent 
of  the  company  to  sell  beer  shipped 
to  him  but  such  contract  was  in  fact 
held  to  be  a  contract  of  sale  it  was 
decided  that  the  contractee  was  liable 
to  pay  the  tax  and  give  the  bond  re- 
quired of  wholesale  liquor  dealers. 
People  v.  Newman,  9!)  Mich.  148,  57 
X.   W.   1073. 

Legislation  that  classifies  licenses 
for  the  sale  of  intoxicating  liquors  by 
retail,  so  that  those  who  are  required 
to  expose  their  places  of  business  to 
view,  are  distinguished  from  other 
licensees,  by  palpable  differences  in 
the  condition  under  which  the  liquor 
i-  to  be  sold,  is  not  unconstitutional. 
Meehan  v.  Excise  Commissioners,  73 
X.  J.  L.  382,  64  Atl.  689. 

22.  A  manufacturer  who  sells  an 
article  manufactured  by  him  is  sub- 
ject to  the  payment  of  a  privlege 
tax  upon  the  selling  of  such  articles 
a  provision  in  the  constitution  thai 
"no  article  manufactured  of  the  pro- 
duce of  this  state  shall  he  taxed 
otherwise  than  to  pay  inspection 
fee-"  exempting  such  article  from 
taxation  only  while  it  remains  in  the 
manufacturers'  hands.  Kurtli  V. 
Stale.  Si;  Tenn.  134.  5  S.  YY.  593. 

Where  a  statute  requires  a  manu- 
facturer to  pay  a  tax  a-  a  manu- 
facturer  but   he   is   exempt   from   an 


204 


TAXES  -LEGISLATIVE  POWERS. 


[§  178 


by  statute  to  sell  wine  on  his  own  premises  without  a  license  and 
is  not  indictable  for  so  doing  or  for  permitting  it  to  be  drank  at 
such  place,  the  object  of  such  statute  being  to  protect  domestic 
makers  of  wine.23     But  one  who  manufactures  wine  from  grapes 


additional  tax  for  selling  at  whole- 
sale such  exemption  is  based  on 
the  fact  that  he  may  sell  as  an  ad- 
junct of  his  business  but  it  will  not 
be  construed  as  giving  him  also  a 
right  to  sell  at  retail  as  this  is  not 
a  necessary  part  of  such  manufactur- 
ing business.  People  v.  Greiser,  67 
Mich.  490,  35  N.  W.  87. 

A  statute  providing  that  "  it  shall 
not  be  lawful  for  any  municipal  cor- 
poration within  this  state  to  levy 
any  tax  on  persons  engaged  in  selling 
articles  of  their  own  manufacture 
manufactured  within  this  state  "  does 
not  exempt  one  who  manufactures 
beer  and  sells  the  same  in  a  beer 
saloon  located  on  the  same  premises. 
City  of  New  Orleans  v.  Guth,  11  La. 
Ann.    405. 

A  brewer  with  a  regular  license 
from  the  United  States  to  manufac- 
ture beer  cannot,  it  has  been  decided 
in  Wisconsin,  established  an  agency 
for  the  sale  of  his  beer  in  a  town 
away  from  his  place  of  business,  and 
-ell  to  such  persons  as  desire  to  pur- 
chase, without  obtaining  a  license 
from  the  authorities  of  the  town 
where  the  sale  is  made.  Peitz  v. 
State,   38  Wis.  538. 

In  Delaware  it  has  been  decided 
that  the  law  authorizes  the  sale  by 
the  manufacturer  of  liquors  only  on 
the  premises,  that  is  in  the  ware- 
house or  on  the  premises  where  they 
are  distilled.  The  court,  however, 
-;iid  that  it  did  not  mean  to  say  that 
Buch  sale  must  be  confined  exactly  or 
precisely  to  the  building  or  the  dis- 
tillery but  it  must  be  at  or  in  a  part 
of    the    manufacturing    plant.     State 


v.    McXett,    5    Penn    (Del.),    334,    61 
Atl.   869. 

Manufacturer  not  a  whole- 
saler.— In  Tennessee  it  has  been 
decided  that  a  manufacturer  of  liq- 
uors who  sells  liquors  manufactured 
by  him  in  unbroken  packages  from 
his  place  of  business  the  article  be- 
ing the  product  of  the  growth  of  the 
state  is  not  a  wholesale  dealer  in 
whisky  under  the  revenue  laws  of 
that  state.  Taylor  v.  Vincent,  12 
Lea  (Tenn.)  282,  47  Am.  Rep.  338; 
compare  Webb  v.  State,  11  Lea 
( Tenn. )  662,  referred  to  in  above 
case  and   distinguished. 

23.  State  v.  Jaeger,  63  Mo.  403. 
See  Kettern  v.  State,  72  Ark.  90,  78 
S.  W.  758;  State  v.  Kennerly,  98 
N.  C.  657,  4  S.  E.  47. 

A  provision  exempting  wines 
produced  from  graves  grown  within 
the  state  while  the  same  are  in  the 
hands  of  the  manufacturers  or  pro- 
ducers thereof  has  for  its  object 
encouragement  of  the  growth  of 
grapes  and  the  production  of  wines 
therefrom  within  the  state.  Douthit 
v.  State,  36  Tex.  Civ.  App.  396,  82 
S.  W.   352. 

Constitutionality  of  such  an 
act. — It  has  been  decided  that  a 
statute  which  prohibits  the  sale  of 
wine  made  from  fruits  grown  in 
other  states  is  not  a  regulation  of 
commerce  in  violation  of  the  constitu- 
tion provision  that  congress  shall 
have  power  "  to  regulate  commerce 
with  foreign  nations  and  among  the 
several  states."  State  v.  Stucker,  58 
Iowa   496. 

Compare   State  v.  Marsh,   37  Ark. 


§    L79] 


TAXES     LEGISLATIVE    POWERS. 


205 


raised  by  him  and  sells  the  same  to  consumers  is  within  the  oper- 
ation of  a  statute  imposing  a  privilege  tax  on  wholesale  and 
retail  liquor  dealers  "  except  manufacturers  who  sell  to  be  sold 
again."  -4 

§  179.  Discrimination  against  liquors  manufactured  in  other 
states. 
The  legislature  in  exercising  the  power  to  tax  the  liquor  traffic 
must  not  discriminate  against  liquors  manufactured  in  other 
states.  Thus  a  statute  which  discriminates  by  imposing  a  tax 
upon  dealers  in  liquors  by  providing  that  such  act  shall  not  apply 
to  liquors  manufactured  in  the  state  is  unconstitutional  as  vio- 
lative of  the  Fourteenth  Amendment  to  the  United  States  Con- 
stitution.2"' And  a  statute  is  void  which  imposes  a  tax  upon 
liquors  manufactured  within  the  state  for  sale  therein  which  is 
the  same  as  that  imposed  upon  liquors  manufactured  in  other 
states  and  brought  within  such  state  for  sale  where  no  tax  is  de- 
manded of  those  who  manufacture  liquors  within  the  state  for 
sale  in  other  states.26     But  a  state  may  impose  a  tax  on  liquors 


35G,  holding  that  a  similar  exception 
in  a  statute  was  in  conflict  with  the 
clause  of  the  Constitution  of  the 
United  States  declaring-  that  Con- 
gress shall  have  power  to  regulate 
commerce  with  foreign  nations  and 
among  the  several  states  because  it 
undertook  to  discriminate  in  favor 
of  wines  manufactured  in  thai  state 
from  its  products  and  against  wines 
manufactured  out  of  the  state  and 
from  grapes,  wines  and  berries  grown 
out  of  the  state.  And  in  this  case 
it  was  held  thai  as  such  unconstitu- 
tional part  could  be  separate!  from 
the  remainder  of  the  act,  the  latter 
should  be  allowed  to  stand.  The 
section  construed  in  this  act  provided 
as  follows:  "Tins  ad  shall  n 
held  to  apply  to  one  who  manu- 
factures and  sells  wines  in  this  state, 


from  native  grapes  or  berries,  or 
other  fruits  grown  in  this  state  and 
who  sells  no  other  liquors,  ardent, 
malt,    vinous    or    fermented. 

24.  Kurth  v.  State,  8G  Tenn.  134, 
5  S.  W.  593. 

In  Louisiana  it  has  been  decided 
thai  a  person  who  raises  grapes  and 
manufactures  them  into  wines  and 
sells  the  same  either  in  a  barroom  or 
grocery  is  liable  to  pay  a  license 
tax  therefor.  Town  of  Mandeville  v. 
Baudot,  49  La.  Ann.  236,  21  So.  258, 
so  holding  under  an  ordinance  im- 
posing a  license  tax  for  selling  "  liq- 
ours." 

25.  Tiernan  v.  Kuiker.  102  U.  S. 
123,  26  L.  Ed.  103. 

-'<'>•  state  v.  Bengsch,  170  Mo.  81, 
70  S.  W.   710. 


206 


TAXES— LEGISLATIVE   POWERS. 


[§   180 


brought  into  the  state  for  sale  where  such  tax  is  of  the  same  amount 
as  that  imposed  upon  liquors  manufactured  within  the  state.27 
Again  where  the  provisions  of  an  act  are  so  connected  that  if  one 
is  void  it  avoids  the  act  as  an  entirety  one  who  is  prosecuted  for 
violating  one  of  its  provisions  as  a  member  of  the  class  provided 
for  therein  may  challenge  its  validity  on  the  ground  that  one 
of  the  other  provisions  referring  to  another  class  is  void.28 

§  180.  Statutes  making  tax  a  lien. 

In  some  state  the  tax  is  made  a  lien  upon  the  building  and  land 
where  the  traffic  is  conducted.  Such  a  statute  is  one  which  it  is 
within  the  power  of  the  legislature  to  pass.  In  Iowa  where  a 
statute  of  this  character  is  in  force  it  is  decided  that  the  tax  is  not 
a  charge  upon  the  property  but  is  assessed  against  the  person  be- 
cause of  the  business  in  which  he  is  engaged  and  is  made  a  lien 
upon  the  property  simply  to  aid  in  its  collection.29     Hence  while 


27.  State  v.  Bengsch,  170  Mo.  81, 
70  S.  W.  710. 

An  act  imposing  a  tax  of  fifteen 
per  cent,  upon  spirituous  liquors  pur- 
chased for  the  purpose  of  sale  by  resi- 
dents of  persons  not  residing  in  the 
state  and  only  ten  per  cent,  upon  such 
ns  are  purchased  from  the  maker  in 
the  state  has  been  held  constitutional 
on  the  ground  that  though  the  provi- 
sion of  the  United  States  Constitu- 
tion as  to  the  regulation  of  inter- 
state commerce  extended  to  the  article 
imported  while  kept  for  sale  in  bulk 
or  package  the  restriction  was  re- 
moved the  moment  the  article  was 
withdrawn  from  the  market  as  a  sub- 
ject of  commerce  and  diverted  to  the 
importers  private  use,  or  is  offered 
for  sale  in  a  peculiar  manner,  as  by 
auction,  or  by  hawking  or  peddling, 
or  in  any  manner  by  retail.  Davis  v. 
Dashiel,  61  X.  C.  114. 

A  statute  providing  that  upon  the 
business  of  trafficking  in  liquors  an 


assessment  shall  be  paid  by  every 
one  engaged  therein  and  for  each 
place  where  the  business  is  carried  on 
and  which  defines  "  trafficking  in  liq- 
uors "  and  declares  that  the  phrase 
does  not  include  the  manufacture 
from  the  raw  material  and  the  sale 
thereof  at  the  manufactory,  by  the 
manufacturer  thereof  in  quantities  of 
one  gallon  or  more  at  any  one  time  ia 
not  a  discrimination  before  foreign 
and  domestic  dealers  as  both  may  sell 
from  the  factory  or  solicit  orders  to 
be  shipped  from  there  and  neither  can 
establish  places  in  the  state  where 
their  goods  can  be  stored  and  sold 
from  without  complying  with  the 
statute.       Reyman     Brewing     Co.     v. 

Brister,  179  U.  S.  445,  44  Sup.  Ct. 
2G9,  21  L.  Ed.  201. 

28.  State  v.  Bengsch,  170  Mo.  81, 

70  S.  W.  710. 

20.  in  re  Taxation  Des  Moines  Ry. 

Co.    137    Iowa    730,    115   N.   W.    740. 

See  also  Guedert  v.  Emmet  County, 


TA  X  l-:S— LEGISLAT1 V  E    POWERS. 


207 


§  180] 

by  the  l;iw  the  tax  is  made  a  lien  in  this  state  yet  it  La  declared  to 
be  junior  to  a  mortgage  on  such  property  existing  at  the  time  the 
tax  is  assessed.30  In  .Montana  however  it  is  decided  that  the  lien 
so  created  takes  precedence  over  any  mortgage  upon  the  prop- 
erty.31 And  in  Ohio  it  is  also  decided  that  a  lien  so  created  is 
superior  to  any  mortgage  on  the  property  and  that  the  fact  that 
at  the  date  of  the  mortgage  no  sale  of  liquor  was  ever  known  to 
have  taken  place  on  the  premises  is  immaterial.32 


116  Iowa  40,  89  N.  W.  85,  wherein 
it  is  declared  that  though  the  tax  is 
made  a  lien  on  the  property  yet  it  is 
not  primarily  a  charge  upon  the  prop- 
erty but  is  a  personal  obligation  on 
the  proprietor  of  the  business  the 
lien  merely  operating  as  an  aid  to  its 
collection. 

Extent  of  lien. — Under  a  statute 
providing  that  the  tax  shall  be  a  lien 
on  all  property,  personal  or  real  used 
in  connection  with  the  business  it  has 
been  decided  that  the  tax  is  not  only 
a  lien  on  the  building  and  the  land 
on  which  it  stands  but  also  on  all 
land  appurtenant  to  and  used  in  con- 
nection  therewith.  Lucas  County  v. 
Leonard,  107  Iowa  593,  78  N.  W. 
263. 

Mode  of  enforcement.— Where 
by  statute  a  tax  is  imposed  on  lands 
where  intoxicating  liquors  are  sold 
and  is  made  a  lien  on  the  land  to  be 
enforced  in  the  manner  provided  by 
law  for  the  collection  of  ordinary 
taxes  by  a  sale  of  the  land  such 
remedy  is  exclusive  and  a  suit  in 
equity  cannot  be  maintained  to  en- 
force such  lien.  Crawford  County  v. 
Laub,  110  Iowa  355,  81  N.  W.  590. 

30.  Smith  v.  Skow,  97  Iowa  640,  66 
N.  W.  893. 

31.  Burfiend  v.  Hamilton.  20  Mont. 
343.  51    Pac.   161. 

32.  Pioneer  Trust  Co.  v.  Stich,  71 
Ohio  St.  459,  73  N.  E.  520. 


See  Foley  v.  Roth,  20  Ohio  S.  &  C. 
P.  Dec.  157,  holding  that  such  a 
statute  insofar  as  it  makes  the  tax 
a  lien  on  the  property  where  the 
owner  has  no  knowledge  that  such 
traffic  is  being  carried  on  there,  and 
the  premises  were  leased  with  a  cov- 
enant against  such  traffic  is  uncon- 
stitutional and  that  an  injunction 
will  lie  to  restrain  the  making  of 
such  tax  a  lien.  The  court  said, 
per  Dicksons,  J. 

"  Under  the  guise  of  protecting 
the  public  morals  and  the  general 
health  the  general  assembly  has  no 
right  to  enact  that  which  will  be  ut- 
terly destructive  to  private  rights. 
The  general  assembly  has  no  power 
to  enact  a  law  to  restrain  an  evil- 
doer—when its  execution  will  af- 
fect directly  both  the  innocent  and 
the  guilty.  The  general  assembly 
has  no  power  to  levy  a  tax  in  re- 
straint of  the  evils  resulting  from  the 
sale  of  liquors  which  will,  and  which 
can  in  its  enforcement,  take  away  the 
property  of  the  innocent.  When  the 
collection  of  such  a  tax  does  this, 
that  part  of  the  same  which  does  this 
is  illegal,  unnecessary,  arbitrary,  un- 
reasonable, unjust,  and  therefore,  un- 
constitutional and  void. 

It  i-  easy  for  the  legislature  to  re- 
lieve this  burden  by  an  amendment, 
and  ]  revenl  the  necessity  of  the  land- 
owner   being    compelled    to    seek    re- 


2US 


TAXES— LEGISLATIVE   POWERS. 


[§   181 


§  181.  Disposal  of  taxes  and  license  fees  dependent  on  statute. 

The  disposal  of  the  money  received  from  taxing  and  licensing 
the  liquor  traffic  depends  upon  the  statutes  in  force  in  each  state, 
this  being  a  matter  depending  upon  legislative  action,  as  is  said  in 
a  case  in  "Wisconsin.  The  moneys  derived  from  licenses  to  sell 
intoxicating  liquors  may  be  disposed  of  by  the  legislature  in  its 
discretion  and  its  power  in  this  respect  is  not  limited  by  any 
requirement  of  uniformity  among  the  political  subdivisions  of  the 
state.33  And  where  the  statute  provides  that  the  money  received 
from  such  source  shall  be  turned  over  to  certain  officials  as  for 
instance  certain  officers  of  a  city,  the  payment  of  such  funds  to 


lief  by  injunction  from  the  courts — 
often  tedious,  slow  and  always  ex- 
pensive. 

Having  held  that  that  part  of  the 
Dow  tax  which  engrafts  upon  the 
land  of  an  innocent  owner  a  part 
thereof,  is  against  the  bill  of  rights, 
the  rights  of  man,  and  therefore  un- 
constitutional and  void,  it  is  not 
necessary  to  pass  on  the  question  of 
the  veracity  of  the  witnesses  as  to 
the  alleged  illegal  sale,  or  on  the 
question  as  to  what  constitutes  the 
business  of  trafficking  in  intoxicating 
liquors. 

The  prayer  of  the  petition  will  be 
granted,  and  the  defendants  restrained 
from  taking  any  further  steps  in  or 
about  the  collection  of  the  balance  of 
this  tax  not  raised  by  distress  on  the 
tenant's  property." 

33.  Rock  County  v.  City  of  Edger- 
ton,  90  Wis.  288,  03  N.  W.  291. 

Special  act  not  revealed  by 
implication. — A  special  act  pro- 
viding how  funds  received  from  li- 
censes in  a  certain  unincorporated 
town  shall  be  disposed  of  is  not  re- 
pealed by  a  subsequent  act  providing 
for  the  payment  of  all  money  re- 
ceived  from   licenses   for  the  sale   of 


liquors  outside  of  incorporated  vil- 
lages and  cities  shall  be  paid  into 
other  funds  than  the  fund  designated 
by  the  special  act,  there  being  no  re- 
pealing in  the  general  act  and  re- 
peals by  implication  not  being  fav- 
ored. State  v.  Bailer,  91  Minn.  186, 
97  X.  W.  670. 

Statute  gives  no  vested  right. 
— A    statute    providing    for   the   pay- 
ment of  money  derived  from  licenses 
to  the  county  treasurer  to  be  used  in 
defraying  the  pauper  expenses  of  the 
county  gives   no   vested   right   to   the 
moneys  in  the  county  so  that  the  legis- 
lature cannot  afterwards  provide  for 
a  different  disposition  of  such  funds. 
So  a  statute  passed  subsequently  giv- 
ing   a    town    or    city    within    such    a 
county    the    option    of    devoting    the 
money  to  other  purposes  and  legaliz- 
ing action   already  taken  by  munici- 
pal   boards    so    doing    is    not    uncon- 
constitutional  even  as  to  money  col- 
lected prior  to  the  passage  of  the  act 
but  which  had  not  been  paid  over  a9 
until  it  had  made  a  demand  for  the 
moneys  so  collected,  the  county  could 
have  no  vested  right  of  action  there- 
for.     Richland    County  v.    Richland 
Center.  59  Wis.  591,  18  X.  W.  497. 


s  1*-] 


TAXES— LEGISLATIVE   PON  EKS. 


209 


the  officials  designated  may  be  enforced  by  mandamus.84  And  it 
has  been  held  that  a  town  board  may  bring  an  action  to  recover 
from  a  village  therein  moneys  received  for  licenses  and  wrong- 
fully retained  by  such  village.35 

§  182.  Same  subject  continued. 

The  doctrine  that  it  is  within  the  power  of  the  legislature  to 
designate  how  the  moneys  received  from  taxes  and  license  fees 
shall  be  disposed  of  is  illustrated  by  statutes  providing  that  all  or 
a  part  of  such  moneys  shall  be  appropriated  for  the  support  of 
the  poor  in  a  certain  city,  town  or  village,30  or  be  turned  over  to 


34.  Where  money  is  due  to  a  city 
from  the  county  treasurer  from  the 
funds  received  by  him  for  licenses 
mandamus  will  lie  to  compel  such 
officer  to  pay  over  to  the  proper  local 
officers  the  amount  to  which  they  are 
entitled  under  the  law.  East  Sagi- 
naw v.  County  Treasurer,  44  Mich. 
273.  6  X.  W.  084. 

And  this  has  been  held  notwith- 
standing the  treasurer  has  been  noti- 
fied by  the  county  commissioners  to 
hold  the  amount  claimed  towards  the 
payment  of  a  judgment  held  by  the 
county  against  the  city.  Common- 
wealth v.  Martin.  170  Pa.  St.  118, 
32   Atl.    024. 

In  Pennsylvania  it  is  decided  that 
where  license  money  is  paid  by  the 
county  treasurer  to  the  supervisors 
who  have  used  it  upon  the  roads,  he 
may  nevertheless  be  compelled  by 
mandamus  to  pay  the  money  again  to 
the  township  treasurer.  Krzykwa  v. 
Croninger,  200  Pa.  St.  359,  49  Atl. 
979. 

35.  Town  of  Fox  Lake  v.  Village 
of  Fox  Lake,  02  Wis.  486,  22  X.  W. 
584, 

36.  In  Wisconsin  a  statute  provid- 
ing that  "  if  any  village  does  not 
under  its  charter  provide  for  the  sup- 
port of  the  poor  therein,  and  the  town 


in  which  such  village  is  situated  does 
support  the  poor  therein  "  all  liquor 
license  moneys  received  by  the  village 
treasurer  shall  be  paid  to  the  town 
treasurer,  was  not  intended  to  modify 
or  regulate  preexisting  rights  or  lia- 
bilities. Winneconne  v.  Winneconne, 
122  Wis.  34!),  !)!)  X.  W.  1055,  con- 
struing Stats.  1898,  §  15G2. 

Where  by  a  general  law  it  is  pro- 
vided that  one-third  of  the  taxes  re- 
ceived by  the  county  treasurer  shall 
be  turned  over  to  the  state  and  the 
remaining  two-thirds  shall  belong  to 
the  town  in  which  the  traffic  was 
carried  on  from  which  the  revenue  was 
received  and  by  a  later  local  law  it  is 
provided  that  all  the  moneys  arising 
from  licenses  granted  in  a  certain 
town  belonging  to  it  shall  be  de- 
posited with  the  treasurer  of  the 
poor  fund  of  such  town  by  the 
county  treasurer,  the  latter  act  will 
be  coi  3trued,  tl  ire  being  no  reference 
to  the  general  law  in  any  way  or  any 
apparent  intention  to  amend  it.  as 
meaning  the  two-thirds  which  by  the 
general  law  belongs  to  the  town  and 
as  not  referring  to  the  one-third 
which  by  such  law  belongs  to  the 
state.  Such  a  construction  is  in  con- 
formity with  the  rule  as  to  giving  ef- 
fect   to   the    legislative    intent,   which 


'210 


TAXES— LEGISLATIVE   POWERS. 


[§   182 


school  districts,37  or  to  a  city  or  town  3S  to  be  applied  to  the  pay- 
ment of  ordinary  expenditures.39  The  legislature  also  generally 
provides  for  the  payment  to  the  state  of  at  least  a  certain  propor- 
tion of  the  moneys  so  collected.40 


the  court  said  was  clearly  as  above 
and  is  also  in  harmony  with  the  gen- 
eral law.  People  v.  Williams,  162 
N.   Y.   240,   5G   N.   E.   G25. 

37.  In  Nebraska  it  has  been  de- 
cided that  money  received  for  liquor 
licenses  issued  under  the  state  law 
does  not  belong  to  the  school  district 
where  the  business  is  carried  on  but 
to  the  county  for  the  use  of  all 
schools  within  the  jurisdiction  of  the 
county.    State  v.  Fenton,  29  Neb.  348. 

A  school  district  is  not  a 
municipality  within  the  Iowa 
statutes  providing  that  one-half  the 
tax  levied  and  collected  on  saloons, 
under  the  statutes  shall  be  paid 
over  by  the  county  treasurer  to  the 
municipality  in  which  the  business  is 
conducted.  Township  of  Sheridan  v. 
Frahm,  102  Iowa  5,  70  N.  W.  721. 

38.  In  Pennsylvania  the  money  re- 
ceived by  the  county  treasurer  for 
licenses  belongs  to  the  different  mu- 
nicipalities for  which  it  is  received 
and  does  not  become  the  money  of 
the  county  because  it  is  in  the  cus- 
tody of  the  county  treasurer.  Com- 
monwealth v.  Martin,  170  Pa.  St.  118, 
32  Atl.  024. 

Not  subject  to  charge  for 
collection. — In  Iowa  that  portion 
of  the  mulct  tax  which  a  county  is 
required  by  law  to  pay  to  a  city  is 
not  subject  to  the  county  treasurer's 
charge  for  collection  as  provided  by 
the  code  for  moneys  collected  by  him 
a-  taxes  due  any  city  or  town  to  be 
paid  out  of  the  same,  but  any  addi- 
tional tax  imposed  by  the  city  for  its 
benefit  and  collected  by  the  treasurer 
should  pay  this  commission.  City  of 
Uaverly  v.  P>rewer  Co.,  126  Iowa  98, 
101  N.  W.  874. 


Right  of  county  treasurer  to 
retain. — Where  after  paying  over  to 
a  village  on  demand  the  portion  of 
a  tax  to  which  it  claimed  to  be  en- 
titled, the  county  treasurer  discovers 
that  the  liquor  dealer  had  engaged  in 
his  business  before  the  corporate 
limits  of  the  village  were  extended  so 
as  to  embrace  the  portion  of  the 
township  in  which  the  business  was 
being  prosecuted  when  such  payment 
was  made  he  may  retain  the  moneys 
so  paid  as  an  offset  to  any  money  due 
from  him  to  the  village.  Grosse 
Pointe  v.  Treasurer,  85  Mich.  44,  48 
N.  W.  153. 

39.  Under  a  law  in  New  York  pro- 
viding that  the  excise  moneys  which 
a  city  or  town  receives  "  shall  be 
applied  to  the  payment  of  the  ordi- 
nary expenditures  payable  from  the 
general  fund  of  the  city  or  town 
respectively  unless  otherwise  provided 
by  a  special  or  local  law  "  it  has  been 
decided  proper  for  a  city  to  charge  a 
contract  for  public  improvement  upon 
moneys  so  received  during  the  cur- 
rent year  where  there  is  a  deficiency 
in  the  fund  upon  which  such  contract 
would  ordinarily  be  chargeable 
caused  by  the  fact  that  the  city  is 
unable  to  collect  taxes  imposed  by  it. 
Hunt  v.  City  of  New  York,  47  App. 
Div.  (N.  Y.)  295,  62  N.  Y.  Supp. 
184. 

Under  this  same  statute  a  resolu- 
tion of  the  board  of  supervisors  is 
not  a  special  or  local  law.  County  of 
Allegany  v.  Town  of  Wellsville,  90 
Hun,  (N.  Y.)  2.3.  35  N  Y.  Supp.  516. 
40.  Constitutionality  of  stat- 
ute.— A  statute  has  been  declared  not 
to  be  unconstitutional  because  it 
gives  the  state  three-eighths  of  the  fees 


§   !83j  TAXES     LEGISLATIVE   POWERS.  211 

§  183.  Regularity  of  proceeding  in  levying  tax — presumption. 

That  a  tax  was  levied  at  a  regular  meeting  of  the  board  au- 
thorized to  levy  it  will  be  presumed  where  that  is  an  essential  re- 
quirement to  its  validity  and  tin-  contrary  is  not  shown.41  Again 
where  the  provision  in  a  statute  as  to  the  date  when  the  proper 
officials  shall  levy  the  tax  is  directory  merely  the  fact  that  it  was 
not  levied  until  a  later  date  will  not  affect  its  validity  where  the 
delay  did  not  prejudice  tho  person  assessed.42 


without  requiring  it  to  pay  a  portion 
of  the  public  expenses  incident  to  its 
enforcement,  such  obligation  being 
held  to  be  discharged  by  the  state's 
contributions  to  the  expense  of  the 
judiciary  and  the  maintenance  of 
charitable,  penal,  and  reformatory 
institutions.  State  v.  Buechler,  10 
S.  D.  156,  72  N.  W.  114. 

Right  of  state  to  recover  such 
moneys. — Where  a  state  is  entitled 
to  the  money  collected  by  cities  for 
liquor  licenses  it  may  recover  from  a 
city  money  which  it  has  collected  for 
such  a  license  and  has  paid  into  its 
own  treasury.  Board  of  Education 
v.  Aberdeen,  56  Miss.  518. 


Effect  of  later  act  conferring 
power  on  cities. — Where  by  statute 
cities  and  towns  are  required  to  pay 
into  the  state  treasury  a  certain  per 
cent,  of  the  sum  collected  by  them  as 
license  fees  such  requirement  is  not 
repealed  by  a  subsequent  enactment 
giving  municipalities  power  to  license 
and  control  the  sale  of  liquors  where 
the  later  act  makes  no  provision  for 
the  disposition  of  the  funds  so  en- 
suing. State  v.  Seattle,  31  Wash. 
149,  71  Pac.  712. 

41.  Hubbell  v.  Polk  County,  106 
Iowa   618,   76  N.   W.   854. 

43.  Hubbell  v.  Polk  County,  106 
Iowa  618,  76  N.  W.  854. 


212  LICENSES— NATURE  OF— LEGISLATIVE   POWERS.      [§    184 


CHAPTEK  IX. 

LICENSES— NATURE  OF— LEGISLATIVE  POWERS. 

Section  184.  License  defined. 

185.  Purpose  of  license. 

186.  License  not  a  contract. 

187.  No  vested  right  created  by  license — not  property. 

188.  Same  subject — Under  New  York  statute. 

189.  License  fee  not  a  tax — uniformity  of  taxation. 

190.  Power  of  state  to  license — source  of. 

191.  Construction  of  acts  generally. 

192.  License  subject  to  laws  in  force  and  subsequently  passed. 

193.  Repealing  acts — effect  on  licenses. 

194.  Legislature  may  prescribe  conditions. 

195.  Power  of  legislature  as  to  amount  of  fee. 

196.  Payment  of  fee  and  mode  of. 

197.  Same  subject  continued. 

198.  Enforcing  payment  of  tax  or  fee. 

199.  Right  to  recover  fee  paid. 

200.  Right  to  recover  fee  continued. 

201.  Provisions  as  to  whom  license  may  issue  to. 

202.  License  Laws  as  affecting  druggists — Physicians. 

203.  Local  boards  may  be  authorized  to  regulate  and  license. 

198.  Enforcing  payment  of  tax  or  fee. 

199.  Right  to  recover  fee  paid. 

200.  Right  to  recover  fee  continued. 

201.  Provisions  as  to  whom  license  may  issue  to. 

202.  License  laws  as  affecting  druggists — physicians. 

203.  Local  boards  may  be  authorized  to  regulate  &  license. 

Sec.  184.  License  defined. 

It  has  been  said  that  the  popular  understanding  of  the  word 
license  is  a  permission  to  do  something  which  without  the  licensee 
would  not  be  •allowed  and  this  is  also  said  to  be  the  legal  meaning.1 

1.  Youngblood  v.   Sexton,  32  Mich.  is  prohibited.     Wilkie  v.  Chicago,  188 

406.     Per  Cooloy.  J.  111.  453,  58  N.  E.   1004;    Carbondale 

A    license    i?    an    authority    to    do  v.  Wade,  106  111.  App.  654. 
something    which    without    authority  A   license   is  a   permission  granted 


§§   185,180]    LICENSES— NATUBE  OF— LEGISLATIVE   POWERS.  213 

And  this  is  true  in  respect  to  a  license  to  traffic  in  intoxicating 
liquors  in  that  such  a  license  is  a  permission  by  a  competent  au- 
thority to  engage  in  that  traffic  in  some  form  and  is  essential  in 
order  to  legalize  its  conduct  and  to  relieve  a  person  engaging 
therein  from  certain  criminal  liability  which  would  attach  in 
the  case  of  its  conduct  by  one  who  had  obtained  no  license. 

§  185.  Purpose  of  license. 

The  primary  purpose  of  a  license  to  sell  liquor  is  not  revenue 
but  regulation.2  As  is  said  in  a  case  in  Indiana,  "  The  purpose  of 
exacting  licenses  is  to  limit  and  regulate  the  business,  for,  if  li- 
censes were  not  required,  all  persons  might,  under  the  rules  of  the 
common  law,  freely  engage  in  the  business,  but,  by  imposing  a 
restriction  in  the  form  of  a  license,  the  traffic  is  regulated  and 
limited.  The  principle  upon  which  the  power  rests  is  a  very 
ancient  one,  and  is  the  same  as  that  which  for  hundreds  of  years 
has  sustained  the  right  to  restrict  the  business  of  hawking  and 
peddling  by  exacting  licenses."  3 

§  186.  License  not  a  contract. 

A  license  to  traffic  in  intoxicating  liquors  confers  no  vested 
rights  but  is  in  the  nature  of  a  mere  permit  to  conduct  the  traffic 
in  accordance  with  the  laws  in  force  at  the  time  of  its  issuance  or 

by   some   competent    authority   to   do  In   Connecticut    it   is   decided   that 
an   act   which,    without    such    permis-  in  the  statutes  of  that  state  there  is 
sion,  would  be  illegal.    Adler  v.  Whit-  no    attempl    to    distinguish    between 
beck,  44   Ohi<>   St.   539,   558,  9   N.  E.  a    liquor    license    and    the    certi; 
672;   State  v.  Hipp,  38  Ohio  St.  20G.  thereof  and   that  the  word    license   is 
"  A  license  is  essentially  the  grant-  used    interchangeably   to   signify  the 
ing  of  a  privilege  to  one  or  more  per-  intangible  right  granted  and  the  pa- 
sons,    not    enjoyed    by    citizens    gen-  per    issued    to    evidence    the    grant. 
erally,   or,   at    least,   not   enjoyed  by  Quinnipiac  Brew  Co.  v.  Hackbarth,  74 
a    class    of   citizens   to   which    the   li-  Conn.  392,  50  Atl.   1023. 
cense  belongs.    A  common  right  is  not  "•  Claussen  v.  City  of  Luverne,  103 
the  creature  of  a  license."     State  v.  Minn.  491,  115  N".  W.  643. 
Frame.    39   Ohio   St.    399.     Per   Mc-  &  Lutz  v.  City  of  Crawfordsville, 
Ilvaine,  J.  109  Ind.  466,  10  X.  E.  411.     Ter  El- 
liott. C.  J. 


214  LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [J    180 

such  subsequent  laws  as  the  legislature  in  its  discretion  may  see 
fit  to  enact.  The  rights  and  privileges  of  the  licensee  exist  solely 
bv  virtue  of  the  law  under  which  the  license  is  granted  and  these 
are  subject  to  the  power  of  the  state  to  subsequently  further  regu- 
late, restrict,  or  prohibit  the  traffic.  The  authority  to  grant  these 
licenses  has  its  origin  in  the  police  power  which  fact  precludes 
the  state  and  consequently  any  local  governmental  agency  from 
conferring  rights  which  cannot  be  subject  to  further  legislative 
action  and  therefore  licenses  can  not  be  said  to  possess  any  of  the 
elements  or  qualities  of  a  contract.4     So  in  a  recent  case  it  was 


4.  United  States.— Kresser  v.  Ly- 
man, 74  Fed.  765. 

Alabama.  Powell  v.  State,  69  Ala. 
10. 

California. — Hevren  v.  Reed,  126 
Cal.   219,  58  Pac.  536. 

Colorado. — People  v.  Rains,  20  Colo. 
489,  39  Pac.  341. 

Connecticut. — La  Croix  v.  County 
Commissioners,  50  Conn.  321,  47  Am. 
Rep.  648;  Le  Croix  v.  County  Com- 
missioners, 49  Conn.  591. 

Georgia. — Sprayberry  v.  Atlanta, 
87  Ga.  120,  13  S.  E.  197. 

Illinois.— People  v.  McBride,  234 
111.  146,  84  N.  E.  865. 

Carbondale  v.  Wade,  106  111.  App. 
654. 

Indiana. — State  v.  Gerhardt,  145 
Ind.  439,  44  N.  E.  469,  33  L.  R.  A. 
313;  State  v.  Bonnell,  119  Ind.  494, 
21  N.  E.  1101;  McKinney  v.  Town 
of  Salem,  77  Ind.  213;  Nelson  v. 
State,  17  Ind.  App.  403,  46  N.  E.  941. 

Iov:a. — Columbus  City  v.  Cutcomb, 
61  Iowa  672,  1/  N.  W.  47. 

Kansas.  Prohibitory  Amendment 
Cases,  24  Kan.  700,  724. 

Maryland.— Fell  v.  State,  42  Md. 
71,  20  Am.  Rep.  83. 

Massachusetts. — Colder  v.  Kurby,  5 
Gray   597. 

Missouri. — Higgins    v.    Talty,     157 


Mo.  1,  57   S.  W.  724;   Hill  v.  Sheri- 
dan, 128  Mo.  App.  415,  107  S.  W.  426. 

New  Jersey. — Meehan  v.  Excise 
Commissioners,  73  N.  J.  L.  382,  64 
Atl.  689;  Lantz  v.  Hightstown,  46 
N.  J.  L.  102. 

Oregon. — State  v.  Horton,  21  Oreg. 
83. 

"  The  enactment  of  a  law  placing 
restrictions  upon  the  sale  of  intoxi- 
cating liquors,  and  requiring  the  pay- 
ment of  a  specified  sum  of  money, 
and  that  a  license  be  obtained  before 
the  business  of  selling  can  lawfully 
be  entered  upon,  is  not  to  be  regarded 
as  a  proposition  on  the  part  of  the 
state  to  contract  for  privileges,  or  to 
sell  indulgences,  but  rather  as  a  pub- 
lic pi'oclamation,  announcing  that  the 
state  regards  the  unrestricted  sale  of 
intoxicating  liquors  as  prejudicial  to 
the  general  welfare,  and  that  in  the 
exercise  of  its  police  power  the  traffic 
has  been  placed  under  regulation  and 
restraint.  Those  who  engage  in  the 
traffic,  after  the  enactment  of  such 
a  law,  must  be  regarded  as  having 
notice  from  the  beginning,  that  the 
power  of  regulation  is  a  continuing 
one  and  that  the  state  reserves  to  it- 
self the  right  to  deal  with  the  sub- 
ject as  the  special  exigencies  of  the 
moment  may  require.    They  are  bound 


§    1^7]      LICENSES— NATURE   OF— LEGISLATIVE   POWEBS. 


215 


declared  that  a  license  issued  by  the  state  under  a  general  statute 
to  a  liquor  dealer  is  not  a  contract  between  the  state  and  the 
licensee  within  the  meaning  of  the  contracl  clause  of  the  Federal 
constitution  bu1  is  a  mere  permit  which  may  be  modified,  annulled 
or  revoked  at  the  will  of  the  legislature.5  And  this  doctrine  was 
also  declared  in  an  early  New  York  decision  wherein  it  was  said 
that  licenses  to  sell  liquors  are  not  contracts  between  the  state 
and  the  persons  licensed  giving  the  latter  any  vested  rights  which 
are  protected  on  general  principles  or  by  the  Constitution  of  the 
United  States  against  subsequent  legislation.6  But  it  has  been 
held  that  a  license  to  retail  spirituous  liquors  is  a  franchise,  that 
a  franchise  is  property  and  is  liable  to  be  taxed  for  county  pur- 
poses.7 

§  187.  No  vested  right  created  by  license — not  property. 

The  control  of  the  liquor  traffic  is  a  matter  of  police  regulation 
and  being  such  it  follows  that  no  one  can  obtain  such  a  vested 
right  in  it  by  reason  of  a  license  that  it  may  not  be  resumed  when 
the  interests  of  society  require  it.8     And  a  license  has  none  of  the 


to  know  that  the  license  or  permit 
has  no  force  or  vitality,  except  as 
it  derives  from  the  law  under  which 
it  was  issued,  and  that  if  the  pub- 
lic good  requires  that  the  law  be  mod- 
ified or  repealed,  no  incidental  in- 
convenience which  they  may  suffer 
can  stay  the  hand  of  the  state.  No 
one  can  acquire  a  vested  right  in  the 
law."  Moore  v.  City  of  Indianapolis. 
120  Ind.  483,  492,  33  N.  E.  424.  Per 
Mitchell,  J. 

5.  Arie  v.  State,  (Okla.  1900),  100 
Pac.  23.  See  also  Coulson  v.  Harris, 
43  Miss.  728. 

<>•  Metropolitan  Board  of  Excise  v. 
Barrie,  34  N.  V.  <;:>7.  667.  The 
court  said:  "  They  have  neither 
the  qualities  of  a  contract  nor  of 
property,   but   are   merely   temporary 


permits  to  do  what  would  otherwise 
be  an  offense  against  a  general  law. 
They  form  a  portion  of  the  internal 
police  system  of  the  State ;  are  is- 
sued in  the  exercise  of  its  police 
powers,  and  are  subject  to  the  direc- 
tion of  the  State  government,  which 
may  modify,  revoke  or  continue  them 
as  it  may  deem  fit."     Per  Wright,  J. 

7.  Coulson  v.  Harris,  43  Miss.  7'_!vv 
Compare  Carbondale  v.  Wade,  lot!  111. 
App.  (i")t.  holding  that  a  license  is 
not    a    franchise. 

8.  Illinois. — People  v.  McBride,  234 
111.  146,  S4  X.  E.  865;  Schwuchow  v. 
(i(y  of  Chicago,  (is  111.  444. 

Touii. — West  v.  Bishop.  110  Iowa 
410,  81  X.  W.  696j  State  v.  Mullen- 
hoff,  71    Iowa  '271.  37  X.  W.  329. 

Missouri. — Higgins    v.    Talty,     157 


o^  LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§    188 

elements  of  property.9  The  fact  that  a  person  has  paid  a  consider- 
ation for  a  license  does  not  confer  upon  it  the  elements  of  prop- 
erty within  the  meaning  of  the  constitutional  provision  that  "  no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law,"  there  being  no  vested  right  in  a  license  which  a 
state  may  not  take  away  at  pleasure.10  So  in  a  recent  case  in 
Iowa  it  is  said  "  a  liquor  license  or  privilege  has  never,  we  think, 
been  held  to  be  a  property  right  which  cannot  be  revoked.  These 
privileges  are  revocable  and  may  be  taken  away  without  notice 
or  opportunity  to  be  heard.  This  proposition  is  so  plain  that  we 
shall  not  take  the  time  to  gather  the  authorities  in  its  support."  n 

§  188.  Same  subject — Under  New  York  statute. 

Under  the  law  in  Xew  York  the  rule  prevails  that  a  liquor  tax 
certificate  constitutes  a  species  of  property  transferable  by  the 
party  procuring  the  same;  that  the  privilege  or  right  which  it 


Mo.  1,  57  S.  W.  724. 

Neiv  Hampshire. — State  v.  Holmes, 
38   N.   H.  225. 

New  York. — Metropolitan  Board  of 
Excise  v.  Barrie,  34  N.  Y.  657. 

Texas.  Rowland  v.  State,  21  Tex. 
App.   418. 

But  see  Adams  v.  Hackett,  27  N.  H. 
289,  59  Am.  Dec.  376;  But  see  State 
v.  Bradish,  95  Wis.  205,  207,  70  N. 
W.  172. 

Right  not  an  accrued  right.— 
A  permit  to  a  pharmacist  to  sell  spir- 
ituous or  intoxicating  liquors  is  not 
an  accrued  right  within  the  meaning 
of  a  code  provision  that  "  the  repeal 
of  a  statute  does  not  *  *  *  affect  any 
right  which  has  accrued  *  *  *  under, 
or  by  virtue  of  the  statute  repealed." 
State  v.  Mullenhoff,  74  Iowa  271,  37 
N.  W.  329. 

»•  United  States. — Cook  Brewing 
Co.  v.  Garber,  108  Fed.  042.  948; 
Kresser  v.  Lyman,  74  Fed.  765. 

California.     Hevren    v.    Reed,    126 


Cal.  219,  58  Pac.  536. 

Connecticut. — La  Croix  v.  County 
Commissioners,   49   Conn.   591. 

Illinois. — Carbondale  v.  Wade,  106 
111.  App.  654. 

Indiana. — Moore  v.  Indianapolis, 
120  Ind.  483,  22  N.  E.  424. 

Iowa. — McConkie  v.  Remley,  119 
Iowa  512,  93  N.  W.  505;  McCoy  v. 
Clark,  104  Iowa  491,  73  N.  W.  1050. 

Missouri.  Higgins  v.  Talty,  157 
Mo.  280,  57  S.  W.  724. 

New  Jersey. — Voight  v.  Board  of 
Excise,  59  N.  J.  L.  358,  36  Atl.  686, 
37   L.  R.  A.  292. 

New  York. — Metropolitan  Board  of 
Excise  v.   Barrie,   34  N.  Y.   657. 

Oregon. — State  v.  Horton,  21  Oreg. 
83,   27   Pac.   165. 

10.  Martin  v.  State,  23  Neb.  371, 
36  N.  W.  554;  Krueger  v.  Colville, 
49  Wash.  295,  95  Pac.  81. 

11-  McConkie  v.  Remley.  119  Iowa 
512,  93  N.  W.  505.     Per  Deemer,  J. 


§    189]      LICENSES— NATURE  OF— LEGISLATIVE    POWERS.  217 

confers  upon  the  holder  cannot  be  revoked  except  in  the  manner 
and  for  the  causes  prescribed  in  the  statute  and  that  the  holder 
may  invoke  the  general  rules  of  law  for  the  protection  of  prop- 
erty in  any  proceeding  having  for  its  object  the  forfeiture  and 
destruction  of  the  right  which  the  certificate  confers.12  The  liquor 
tax  certificate  being  valid  when  issued  the  licensee  is  entitled  to 
traffic  in  liquors  during  the  time  for  which  the  certificate  was 
granted  and  in  the  absence  of  any  provision  by  the  legislature 
authorizing  or  requiring  its  revocation,  his  right  is  complete  and 
perfect  and  cannot  be  interfered  with.13  But  while  liquor  tax 
certificates  have  characteristics  and  value  which  did  not  attach  to 
excise  licenses  under  the  former  statutes,  they  are  "  property  " 
only  in  a  qualified  and  restricted  sense.14  The  certificate  confers 
certain  rights  for  the  term  of  one  year,  only  upon  the  condition 
which  is  an  implied  one  that  the  statute  remains  in  force  for  that 
period.15 

§  189.  License  fee  not  a  tax — uniformity  of  taxation. 

A  statute  exacting  the  payment  of  a  sum  called  a  tax,  and  also 
the  giving  of  a  bond,  as  conditions  precedent  to  the  right  to  en- 
gage in  the  sale  of  intoxicating  liquors,  is  an  exercise  of  the  police 
power  rather  than  a  tax  law  in  the  proper  sense.16     And  the  uni- 

12.  Matter  of  Lyman,  160  N.  Y.  96,       Flynn,  48  Misc.  R.    (X.  Y.)    159,  96 
54  X.  E.  577,  cited  in  Matter  of  Cull-       N.  Y.   Supp.  653. 

inan,  82  App.  Div.    (N.   Y.)    445,  81  1G.  People    v.    Murray,    149    N.    Y. 

\.   Y.  Supp.  567;   See  also  Matter  of  367,  44  N.  E.  146.  32  L.  R.  A.  344. 

Cullinan,  94  App.  Div.    |  V  Y.)   445,  The  court  said  in  this  case:     "The 

88    N\   V.   Supp.    164;    Matter  of  Hil-  claim  that  the  act  of   1896   is  a  tax 

Haul.   -J.")   App.   Div.    ( N.   Y.)    222,   49  law.   having  for   its  primary  purpose 

N.  V.  Supp.  286.     Matter  of  Living-  the  raising  of  revenue  for  the  support 

ston.   24   App.   Div.    (N.   Y.)    51,   48  of    government,    involves    the    theory 

X.  Y.  Supp.  989.  that  the  legislature  in  enacting  it  in- 

13.  Matter  of  Hilliard,  25  App.  Div.  tended  to  depart    from   the  principle 
(N.  Y.)   222.  49  X.  Y.  Supp.  286.  upon  which  all  excise  laws  have  hith- 

1-*.  People     ex     rel     Laughran  v.  erto    been    founded.      That    principle 

Flynn,  48  Misc.  R.    (X.   V.  i    159,  96  lias  1 a  by  exaction  and   restriction 

X.    Y.    Supp.    653.  to    limit    a    dangerous    traffic    in    the 

15.  People     ex     rel     Laughran  v.  interests  of  social  order  and  the  pub- 


218  LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§    189 

formity  of  taxation  provided  for  by  the  constitution  of  a  state 
does  not  operate  to  deprive  the  legislature  of  power  to  classify 
occupations  for  the  purposes  of  taxation  and  the  legislature  may 


lie    welfare.      It    is    probably    compe- 
ent  for  the  legislature  to  tax  occupa- 
tions or  business  as  a  source  of  rev- 
enue and  it  could  tax  the  liquor  traf- 
fic   for    this    purpose.      The    selection 
of  the  subjects  of  taxation  rests  with 
the    legislature    and    the    imposition 
of  a  license  fee  for  revenue  on  a  bus- 
iness or  occupation  is  an  exercise  of 
the   power   of   taxation.    *    *    *      But 
an   exaction   imposed   as    a   condition 
of  the   right  to  carry   on   a   business 
dangerous  to  public  morals  or  which 
may  involve  public  burdens,  by  way 
of    discouragement    or    regulation,    is 
not   in   any   proper   sense   a   tax.      It 
does   not   proceed   upon   the   principle 
upon  which  taxes  are  levied  and  upon 
which   taxation   is   justified,   viz.,   the 
protection    afforded    by    the    govern- 
ment to  the  taxpayer.    The  imposition 
is  made  in  such  cases  generally  for  a 
double  purpose,  to  discourage  the  bus- 
iness and  to  secure  indemnity  in  part 
to  the  public  from  the  losses  and  bur- 
dens which  the  business  is   likely  to 
entail.      The    so-called    excise   tax    is 
for  the  protection  of  the  community 
and    not    for    the    protection    of    the 
person  from  whom  it  is  exacted.  *  * 
There  can  be  no  doubt  that  a   large 
revenue  will  result  from  excise  taxes 
imposed  by  the  act  of  1896  nor  that 
this  was  contemplated  by  the  legisla- 
ture.    But  this  will  be  a  consequence 
of  the  system,  and  was  not  the  mo- 
tive  of    its   adoption.      It   was    mani- 
festly not  the  intention  of  the  legis- 
lature to  encourage  the  traffic,  but  to 
control,  restrict  and  regulate  it,  and 
by    the    local    option    provision    it    is 
rendered    possible    that    it    may    be 
wholly    prohibited    in    every   town    in 
the    state,    a    provision    quite    incon- 
sistent with  a  purpose  to  encourage 


the  traffic  or  to  make  it  an  ordinary 
source  of  revenue.  The  fact  that  the 
exaction  is  in  the  act  denominated  a 
tax  is  not  conclusive.  All  exactions 
imposed  upon  cities  by  public  au- 
thority are  in  a  general  sense  taxes 
whether  imposed  for  regulation  or 
revenue.  The  character  of  the  act  of 
1896,  whether  a  tax  law  in  a  proper 
sense,  or  a  law  enacted  under  the 
police  power,  must  be  determined  from 
its  whole  scope  and  tenor,  and  there 
can  be  no  reasonable  doubt  we  think 
that  it  is  of  the  latter  character. 
It  is  radically  different  in  some  re- 
spects from  the  excise  laws  which  it 
supersedes.  But  the  changes  are  in 
the  administration  of  the  entire  sys- 
tem and  not  in  its  essential  character 
The     most    noticeable    changes    are: 

( 1 )  State  supervision  in  place  of  su- 
pervision through  boards  of  excise  and 

(2)  the  opening  of  a  traffic  to  all 
citizens  (with  certain  exceptions)  who 
shall  pay  the  license  tax  and  give 
the  bond  required.  The  payment  of 
the  tax  and  the  giving  of  the  bond 
are  conditions  precedent  to  the  right 
to  engage  in  the  business,  and  the 
impositions  of  conditions  precedent  is 
the  distinguishing  test  of  a  license 
law."     Per  Andrews,  C.  J. 

See  also  Henry  v.  State,  26  Ark. 
523;  Pleuler  v.  State,  11  Neb.  547,  10 
N.  W.  481. 

"  A  license  fee  is  not  a  tax  imposed 
upon  a  citizen  nolens  volens.  He  is 
not  compelled  to  apply  for  a  license, 
or  to  take  one  if  the  licensing  board 
are  willing  to  grant  him  one.  If  he 
takes  it,  he  takes  and  holds  it  sub- 
ject to  the  conditions  imposed  by  law." 
McGinnis  v.  Medway,  176  Mass.  C7, 
57  W.  E.  210.     Per  Hammond,  J. 


§    190]     LICENSES— NATURE  OF— LEGISLATIVE    POWERS.  219 

in  the  exercise  of  the  general  powers  possessed  by  it  requir<    a 

license  of  those  engaged  in  the  liquor  traltic  or  it  may  elas 
those  engaged  in  such  traffic  and  require  a  different  license  fee 
from  the  different  classes.17  So  in  a  case  where  this  question 
was  raised  the  court  said:  "No  one  can  doubt  (who  reads  the 
act  in  question)  that  the  intention  of  the  legislature,  in  its 
passage,  was  to  regulate  a  traffic  which  was  believed  by  them 
to  be  pernicious  in  its  effects  upon  society,  and  not  for  the 
purpose  of  raising  revenue.  The  principal  object  was  to  regu- 
late such  traffic,  not  to  raise  revenue.  The  constitutional  pro- 
vision in  regard  to  equality  and  uniformity  of  taxation,  has 
reference  solely  to  'taxation'  pure  and  simple,  acording  to  the 
commonly  accepted  meaning  of  that  term,  for  the  purpose  of 
revenue  only.  It  does  not  apply  to  those  impositions  made  under 
the  police  power  of  the  state  as  a  means  of  restraining  and  regu- 
lating a  business  that  may  be  regarded  as  evil  in  its  effects  upon 
society."  18 

§  190.  Power  of  state  to  license — Source  of. 

The  power  of  the  state  to  regulate  the  liquor  traffic  by  a  licens- 
ing system  is  generally  recognized.  Statutes  of  this  character 
violate  no  constitutional  right  of  the  individual  and  are  within 
the  power  of  the  legislature  to  pass  in  the  absence  of  some  direct 
constitutional  limitation  in  this  respect.  The  power  is  exercised 
for  the  purposes  of  regulation  and  its  origin  is  in  that  broad  power 
inherent  in  the  state  which  is  known  as  the  police  power.19     The 

17.  Idaho. — State     v.     Doherty,     3  1S-  State  v.   Doherty,   3    Ida.    3S4. 

Ida.  384,  29  Pac.  855.  389,  29  Pac.  855.     Per  Sullivan.  C.  J. 

Illinois. — Livingston    v.    Board    of  *!>-  United       States — Crowley       v. 

Trustees,  99  til.  564.  Christenson,  137  U.  S.  86,  11  Sup.  Ct. 

Indiana.— Thomasson    v.    State,    15  13,    34   L.   Ed.   620. 

Ind.  449.  Arkansas.     Henry  v.  State.  2H  Ark. 

Missouri. — State  v.  Hudson,  78  Mo.  523. 

302.  Connecticut. — State     v.     Gray,     i'.I 

South   Dakota.— State  v.   Bueehler,  Conn.    39,   ->'2    Atl.   675;    La    Croix   v. 

10  S.  D.  156,  72  N.  W.  114.  County  Commissioners,  49  Conn.  591. 


220  LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§    IQQ 

requirement  by  statute  that  a  person  shall  take  out  a  license  before 
engaging  in  the  business  of  selling  liquors  is  not  invalid  as  deny- 
ing to  a  person  due  process  of  law,20  and  does  not  conflict  with 
any  provision  of  the  Constitution  of  the  United  States.21  Upon 
this  question  of  the  power  of  the  legislature  to  require  a  license 
as  a  condition  precedent  to  the  right  to  carry  on  the  liquor  traffic 
it  is  said  in  a  case  in  Xew  York:  "The  legislature  is  the  de- 
pository of  the  sovereign  power  of  the  people,  and  in  exercising 


Georgia.  Sprayberry  v.  Atlanta, 
87  Ga.  120,  13  S.  E.  197. 

Indiana. — Sopher  v.  State,  169  Ind. 
177,  81  N.  E.  913.  Haggart  v.  Steh- 
Hn,  137  Ind.  43,  35  W.  E.  997,  22 
L.  R.  A.  577 ;  Thomasson  v.  State,  15 
Ind.  449. 

Kentucky. — Commonwealth  v.  Fow- 
ler, 96  Ky.  166,  28  S.  W.  786,  33  L. 
R.  A.  839. 

Louisiana. — State  v.  Boston  and 
Pickwick  Club,  45  La.  Am.  585,  12 
So.  895,  20  L.  R.  A.  185. 

Maine.     Lunt's  Case,  6  Me.  412. 

Maryland. — Kellar  v.  State,  11  Md. 
525. 

Minnesota. — Claussen  v.  Luverne, 
103  Minn.  491,   115  N.  W.  543. 

Mississippi. — Schulherr  v.  Bor- 
deaux, 64  Miss.  59,  8  So.  201. 

Missouri. — State  v.  Searcy,  20  Mo. 
489. 

Nebraska. — Hunzinger  v.  State,  39 
Neb.  653,  58  N.  W.  194;  State  v. 
Hardy,  7  Neb.  377. 

Xew  Hampshire. — Pierce  v.  State, 
13  N.  H.  536. 

\<  a-  York. — People  v.  Bashford,  128 
App.  Div.  351,  112  N.  Y.  Supp.  502; 
[ngersoll  v.  Skinner,  1  Den.  540. 

Ohio. — Anderson  v.  Brewster,  44 
Ohio  St.  576;  !)  X.  E.  683. 

Pennsylvania. — Boyle's  License,  190 
Pa.  St.  577,  42  Atl.  1025,  45  L.  R.  A. 
399. 

Sou/li  Dakota. — Burke  v.  Collins,  18 
S.  D.  190,  99  N.  W.  1112. 


West  Virginia. — Ward  &  Co.  v. 
County  Court,  51  W.  Va.  102,  41  S.  E. 
154. 

License  statutes  are  restric- 
tions.— Statutes  commonly  spoken  of 
as  license  laws  are  not,  strictly 
speaking,  grants  of  special  priv- 
ileges but  rather  restrictions  upon 
the  exercise  of  a  previously  existing 
right  as  in  the  absence  of  any  con- 
stitutional or  legislative  prohibition 
of  a  restriction  upon  the  traffic  any 
person  may  engage  therein.  State  v. 
Roberts,  74  N.  H.  476,  69  Atl.  722. 

Different  license  statutes 
should  be  so  construed  as  to  give 
effect  to  both  or  all  if  possible. 
Shiflett  v.  Grimsby,  104  Va.  423,  51 
S.  E.  838. 

Statute  not  given  retroactive 
effect. — It  has  been  decided  that  a 
statute,  whether  construing  it  liter- 
ally or  according  to  the  circum- 
stances and  principles  of  construc- 
tion, which  provides  for  the  obtain- 
ing of  permits  for  the  opening  of  a 
saloon  will  not  be  construed  as  ap- 
plying to  persons  by  whom  permits 
had  been  obtained  prior  to  the  en- 
actment of  the  statute  at  the  places 
authorized  by  such  permits.  State 
v.  Grunewald,  123  La.  527,  49  So. 
162;  State  v.  Lewis,  123  La.  539,  49 
So.  167. 

20.  Carroll  v.  Wright,  131  Ga.  728, 
63  S.  E.  260. 

21.  Ingersoll  v.  Skinner,  1  Den.  540. 


g    191]      LICENSES— NATUEE  OF    LEGISLATIVE   POWERS.  221 

it  to  subserve  the  public  good,  prohibits  the  Bale  of  intoxicating 
liquors  in  small  quantities,  excepl  by  license;  subjecting  all  of- 
fenders to  forfeitures  and  criminal  punishment.  At  the  same 
time  provision  is  made  for  licensing  or  permitting  persons  to 
carry  on  the  retail  trade  under  certain  regulations.  Without 
license,  and  in  defiance  of  the  law,  the  traffic  is  carried  on,  and 
those  engaged  in  it  claim  to  be  guiltless"  of  any  offense,  beca 
the  statute  is  void.  Why  void  \  It  is  within  the  scope  of  legis- 
lative power,  for  that  is  general  and  unlimited  and  extends  to  all 
subjects  of  legislation,  except  in  those  particulars  wherein  it  is 
expressly  restrained  by  the  Constitution.  A  law  prohibiting  the 
indiscriminate  traffic  in  intoxicating  liquors  and  placing  the  trade 
under  public  regulation  to  prevent  abuse  in  their  sale  and  use, 
violates  no  constitutional  restraint.  Is  it  not  an  absurd  proposi- 
tion, that  such  a  law  by  its  own  mere  force  deprives  any  person 
of  his  liberty  or  property,  within  the  meaning  of  the  Constitution 
or  that  it  infringes  upon  either  of  these  secured  private  rights  ?  "  22 

§  191.  Construction  of  acts  generally. 

An  act  of  the  legislature  will  not  be  held  to  operate  retrospec- 
tively unless  the  legislative  intention  that  it  shall  have  such  oper- 
ation be  clearly  shown  by  its  terms.23  And  in  construing  an  act 
as  to  licenses  the  context,  should  be  looked  at  and  the  surround- 
ings and  also  the  evil  intended  to  be  remedied,  and  the  end  to  be 
accomplished  should  be  considered.24  Thus  an  act  providing  in 
the  same  section  that  no  licenses  shall  be  granted  outside  of  in- 
corporated cities  and  towns  and  that  it  shall  be  unlawful  to  sell 

22.  Metropolitan    Board    of    Excise  perhaps  would  not  at  this  time  except 

v.    Barrie,   34   N.  Y.   G57,   Giiii.     Per  as    emboldened    by    the    inconsiderate 

Wrightj  J.  dicta  of  some  of  the  judges  in  the  case 

See   note   7   N.   Y.    Ann.    Rev.    Ed.  of    Wynhamer    v.    People,    13    N.    Y. 

800.    The  court  also  saiil  in  this  case:  378." 

"No    one    has    heretofore    questioned  23.  Watts     v.     Commonwealth,     7s 

on  constitutional  grounds  the  validity  Ky.   329. 

of  such  an  enactment,  or  called  upon  24.  State  v.  Cofield,  22  S.  C.  301. 

the  judiciary    to   declare    it    void,   and 


222 


LICENSES— NATURE  OF— LEGISLATIVE  POWERS. 


[§ 


192 


intoxicating  liquors  without  a  license  is  not  to  be  construed  as  per- 
mitting the  sale  in  such  cities  and  towns  without  a  license  but  the 
latter  part  of  the  section  forbidding  sales  without  a  license  is  to 
be  construed  as  applying  to  the  entire  state.25 

§  192.  License  subject  to  laws  in  force  and  subsequently  passed. 

One  who  takes  a  license  from  the  state  or  a  municipality  takes 
it  subject  to  such  valid  laws  as  may  be  in  force  at  the  time  of  it's 
issuance  or  which  may  be  subsequently  passed  by  the  legislature 
in  the  exercise  of  its  police  power.26  So  a  licensee  was  held  after 
the  passage  of  an  act  making  it  an  offense  to  sell  intoxicating 
liquors  to  a  person  in  the  habit  of  becoming  intoxicated,  liable 
to  the  provisions  of  such  act.27  And  where  a  license  law  is  re- 
pealed by  a  subsequent  enactment  the  privileges  granted  by  the 
former  law  are  revoked  upon  the  subsequent  one  taking  effect.28 


25.  State  v.  Cofield,  22  S.  C.  301. 

26.  Horning  v.  Wendell,  57  Ind. 
171;  People  v.  The  Warden,  6  App. 
Div.  (N.  Y.)  520,  39  N.  Y.  Supp. 
582;  Commonwealth  v.  Donahue,  149 
Pa.  St.  104,  24  Atl.  188;  Common- 
wealth v.  Sellers,  130  Pa.  St.  32,  18 
Alt.    541,    542. 

Sales  on  specified  days  forbid- 
den.—Payment  of  the  liquor  tax  for 
the  ensuing  year  does  not  exempt  the 
dealer  from  the  operation  of  a  subse- 
quent law  passed  during  the  year  for- 
bidding the  sale  of  liquor  on  specified 
days,  as  the  state  does  not  by  the  pas- 
sage of  a  statute  taxing  the  liquor 
traffic  preclude  itself  from  passing 
further  laws  affecting  the  traffic. 
Reithmiller  v.   People,  44  Mich.  280. 

Statute  increasing  license  fee 
— Reasonable  time  to  comply 
witb.— In  Texas  it  has  been  decided 
that  where  a  statute  is  passed  in  re- 
spect to  the  granting  of  licenses  and 
increasing  the  license  fee  and  which 
provides  "  all  laws  and  parts  of  laws 


in  conflict  with  this  act  are  hereby 
expressly  repealed "  does  not  have 
the  effect  of  immediately  revoking  all 
licenses  granted  under  a  prior  statute 
but  that  the  licensee,  under  such  law 
have  a  reasonable  time,  in  which  to 
comply  with  the  new  act,  during 
which  time  they  may  continue  in  bus- 
iness under  the  old  licenses.  Ex  parte 
Vaccarezza,  52  Tex.  Cr.  105,  105  S. 
W.  1119. 

27.  Hedges  v.  Titus,  47  Ind.  145. 

28.  Pleuler  v.  State,  11  Neb.  547, 
10  N.  W.  481. 

Does  not  impair  obligation  of 
contract. — Where  a  license  was 
granted  for  a  year  and  a  few  months 
thereafter  a  law  went  into  effect 
which  declared  such  license  void  be- 
fore its  termination  and  required 
that  a  liquor  tax  certificate  be  taken 
out  by  the  licensee  and  a  tax  paid,  it 
was  decided  that  such  act  was  not 
void  in  that  it  impaired  the  obliga- 
tion of  a  contract.  Kresser  v.  Ly- 
man, 74  Fed.  765. 


§    1{)3]      LICENSES— NATURE  OF— LEGISLATIVE    POWEBS.  223 

So  a  permit  to  pharmacists  to  sell  liquors  is  terminated  by  a  re- 
peal of  the  law  granting  such  right.29  And  where  the  statute  in 
one  section  forbids  the  sale  of  intoxicating  liquors  except  so  far 
as  one  may  be  authorized  to  in  the  manner  provided  by  the  act, 
making  certain  except  ions  as  to  the  application  of  the  act,  and  in 
another  section  provides  for  the  granting  of  licenses  to  sell,  an 
act  declaring  that  licenses  shall  have  no  validity  after  a  certain 
date,  operates  as  a  repeal  of  the  section  as  to  license  and  leaves  the 
general  prohibition  in  force.30 

§  193.  Repealing  acts — effect  on  licenses. 

The  rights  of  the  licensee  to  continue  his  business  to  the  end  of 
the  term  is  of  course  recognized  where  the  repealing  act  contains 
a  clause  to  the  effect  that  it  is  not  intended  thereby  to  affect  li- 
censes already  in  existence.31  An  act  which  also  contains  nothing 
therein  either  expressly  or  impliedly  to  show  an  intent  to  revoke 
or  annul  the  licenses  granted  under  an  earlier  act  will  not  be  con- 
strued as  having  the  effect  of  repealing  the  prior  law  but  under  a 
law  of  this  character  the  license  will  continue  in  force  until  the 
expiration  of  the  term  for  which  it  was  granted.32     Thus  where 

Use    of    bar    fixtures. — A    liquor  31.  Lehritter  v.  State,  42  Ind.  482. 

seller   has   no   right   to   continue   the  32.  Bush   v.   District  of   Columbia, 

use  of  his  bar  fixtures  for  the  sale  of  1  App.  Cas.   (D.  C. )   1  :  Him  v.  State, 

liquor  because  he  can  put  them  to  no  1  Ohio  St.  15;  Davis  v.  State,  2  Tex. 

other  use  as  to  hold  otherwise  would  App.  425;  Sop  also  State  v.  Andrews, 

be  equivalent  to  holding  that  the  law  28  Mo.  14:  State  v.  Andrews.  26  Mo. 

cannot    be   changed    so   as  to   deprive  172;  Adams  v.  Hackett.  27  N.  II.  2S!I, 

him  of  bis  license  or  the  right  to  con-  59   Am.   Dec.    370. 

tiiuie  the  business.     The  seller  in  such  The    doctrine    that    a    general 

a    case    in    providing    bar    fixtures    to  affirmative   statute   does   not  re- 

earry  on  his  business  of  selling  liquor  peal   a   prior  particular   statute, 

under    a    license,    assumes    the    risk  or   particular    provisions   of   a    prior 

that  the  business  may  bo  made  un-  statute  unless  negative  words  are  used 

lawful      People   v.    McBride,   234    111.  unless    there   be   an    ireconcilable    re- 

146,  84  N.  E.  865.  pugnancy  between  the  two,  has  been 

2J>.  State    v.    Mullenhoff.    74    Iowa.  applied    where    a    license    statute    ex- 

271,  37   N.  W.   329.  empted    the   manufacturers   of   wines 

30.  Commonwealth  v.  Brennan,  103  from    fruits    grown    within    the    state 

Mass.  70.  from   its  provision   and  a   subsequent 


224 


LICENSES— NATURE  OF— LEGISLATIVE  POWERS.      [§    193 


a  general  statute  as  to  granting  licenses  can  be  construed  as 
bavin-,'  reference  to  otber  classes  of  business  tban  intoxicating 
liquors  it  will  not  operate  as  a  repeal  of  statutes  especially  pro- 
viding for  tbe  granting  of  licenses  for  tbe  sale  of  intoxicating 
liquors.33  And  where  an  act  by  its  operation  repeals  a  prior  act 
so  far  as  such  act  conferred  power  to  grant  licenses  in  the  future 
but  does  not  by  express  language  revoke  or  annul  outstanding  li- 
censes, such  effect  will  not  be  given  to  it  by  implication.34  But 
where  two  acts  of  the  general  assembly  in  reference  to  the  granting 
of  licenses  are  in  irreconciliable  conflict,  the  act  last  enacted  will 
be  regarded,  there  being  no  express  words  of  repeal,  as  repealing 
by  implication  the  earlier  act.35     So  a  statute  providing  for  the 


license  law  was  passed  which  con- 
tained no  exemption  in  favor  of  such 
manufacturers.  Chamberlain  v.  State, 
50  Ark.  132,  6  S.  W.  524. 

Upon  the  question  of  the  re- 
peal of  an  act  it  is  a  principle 
that  the  purpose  and  intention  of 
the  legislature  may  be  obtained  from 
its  dealing  with  that  act,  by  legisla- 
tion affecting  it  had  subsequent  to 
the  statute  by  which  it  is  claimed  to 
have  been  repealed.  People  v.  Smith, 
69  N.  Y.  175. 

Where  an  act  providing  for  the  re- 
peal of  all  laws  authorizing  the  issu- 
ing or  granting  of  licenses  from  and 
after  the  passage  of  the  act,  further 
provides  in  a  subsequent  section  that 
the  act  shall  take  effect  on  a  certain 
date  provided  that  if  a  majority  of 
the  ballots  to  be  deposited  as  provided 
therein  are  against  prohibition  then 
it  shall  be  of  no  force  and  effect 
whatever,  the  hitter  section  will  be 
regarded  as  prevailing  over  the 
former  which  will  not  be  construed 
as  repealing  the  license  laws  until 
the  measure  has  been  adopted  by  a 
vote  of  the  people.  Zavresseller  v. 
People,   17   111.    101. 

In  New  York  the  act  of  1845  relat- 


ing to  excise  did  not  repeal  the  pro- 
visions of  the  revised  statutes  making 
it  penal  and  indictable  to  sell  strong 
and  spirituous  liquoTS  without  a  li- 
cense, in  the  towns  where  the  electors 
had  voted  against  such  licenses.  Peo- 
ple v.  Townsey,  5  Den.   (N.  Y.)   70. 

33.  Walter  v.  State,  105  Ind.  589, 
5  N.  E.   735. 

34.  Hirn  v.  State,  1   Ohio  St.   15. 

35.  State  v.  Monger,  111  N.  C.  675, 
16   S.  E.  229. 

Where  at  the  time  a  law  is  in  force 
which  classifies  liquor  dealers  among 
vendors  of  merchandise  and  making 
them  subject  to  assessment  as  such, 
another  law  is  passed  to  regulate 
the  sale  of  intoxicating  liquors  and 
imposing  a  license  and  the  latter  act 
shows  no  intention  to  render  such 
dealers  subject  to  the  payment  of  both 
the  assessment  and  the  license  fee, 
the  former  act  so  far  as  it  affected 
such  persons  will  be  regarded  as  re- 
pealed, it  being  declared  that  though 
the  legislature  has  power  to  impose 
such  a  burden  on  liquors,  the  inten- 
tion to  do  sri  must  be  clearly  manifest. 
Commonwealth  v.  Brewing  Co.,  146 
Pa.  St.  642,  23  At  1.  384. 

Where  an  act  is  passed  which  pro- 


§    194]      LICENSES— NATUEB  OF— LEGISLATIVE    POWERS.  225 

licensing  of  the  salt-  of  intoxicating  liquors  and  which  prohibits 
their  sale  without  a  license  repeals  by  implication  a  previous  stat- 
ute prohibiting  the  sale  of  such  liquors  absolutely.36  And  where  a 
general  law  is  passed  which  is  entirely  inconsistent  with  a  local 
option  act  in  reference  to  the  granting  of  licenses  by  a  county  and 
the  amount  of  the  fee,  such  act  will  be  regarded  as  repealed  by 
implication.37 

§  194.  Legislature  may  prescrible  conditions. 

The  legislature  in  the  exercise  of  its  power  to  control  and  regu- 
late may  annex  any  conditions  in  regard  to  the  issuance  of  licenses 
or  the  exercise  of  the  rights  conferred  by  a  licensee  which  in  its 
discretion  it  may  deem  proper.38  Thus  the  legislature  may  pro- 
vide that  the  number  of  licenses  issued  shall  not  exceed  a  certain 
proportion  to  the  population,39  or  it  may  require  that  the  appli- 
cant shall  obtain  the  consent  of,  or  that  his  application  or  petition 
shall  be  signed  by,  a  certain  number  of  persons  of  a  specified  class 


vides  what  the  annual  tax  shall  be 
and  for  its  payment  to  the  state,  such 
act  supersedes  a  prior  statute  fix- 
ing the  price  for  license  and  invest- 
ing the  country  authorities  with 
power  to  exact  such  further  sura  as 
they  may  in  their  discretion  deter- 
mine. Drew  County  v.  Bennett,  43 
Ark.  3G4. 

36.  Cullen  v.  State,  42  Conn.  55. 

37.  Bergmeyer  v.  Greenup  County, 
19  Ky.  Law  Rep.  1599,  44  S.  YV.  82. 

38.  Sasser  v.  Marl  in,  101  Ga.  447, 
29  S.  E.  278:  People  v.  Meyers.  95 
N".  Y.  223,  citing  Board  of  Excise 
v.  Barrie,  34  N".  Y.  657.  See  also 
Chapters   VI   and   XI   herein. 

39.  A  license  statute  regulating  the 
sale  of  intoxicating  liquors  which 
provides  that  the  nuraher  of  licenses 
granted  shall  not  exceed  one  for  each 
five  hundred  inhabitants,  has  been 
held  not  to  apply  to  an  act  in  refer- 


ence to  the  granting  of  licenses  to 
social  clubs  to  sell  liquors  to  their 
members  though  the  former  may  con- 
tain a  provision  excepting  druggists 
from  its  operation,  it  being  declared 
that  in  the  construing  the  two  acts  to- 
gether there  were  many  provisions 
in  the  general  law  not  at  all  appli- 
cable to  clubs:  that  the  act  as  to 
clubs  was  complete  in  itself  and  that 
in  no  way  did  there  appear  an  intent 
to  have  such  act  apply  to  clubs  in 
this  respect.  Greenough  v.  Board  of 
Police  Commissioners,  (R.  I.  1909), 
71   Atl.  80G. 

Number  of  places  in  a  city  or 
town. — A  statute  limiting  the  num- 
ber of  licensed  places  within  the 
territory  of  a  city  or  town  is  con- 
stitutional. State  v.  Board  of  Com- 
missioners, (Wyo.  1909),  105  Pac. 
295. 


226 


LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§    194 


such  as  property  owners,40  householders,41  voters,42  citizens,43  or 
residents.44  Conditions  also  in  regard  to  the  building  or  locality 
in  which  the  traffic  may  be  authorized  by  license  may  properly  be 
imposed  by  the  legislature.45  So  statutes  in  many  cases  impose 
certain  conditions  or  requirements  in  connection  with  the  place 
where  the  business  is  to  be  carried  on  and  where  such  conditions 
are  imposed  a  license  should  not  be  granted  for  a  place  which  does 
not  conform  to  such  requirements.46  Thus  the  state  may  forbid 
the  granting  of  a  license  to  conduct  the  liquor  traffic  in  a  dwelling 
house,47  or  within  a  certain  distance  of  a  school,  church,  or  a 
charitable  or  public  institution.48     And  a  statute  is  constitutional 


40.  Ex  parte  Christenson,  85  Cal. 
208,  24  Pac.  747.  See  Chapters  VI 
and  XI  herein. 

41.  New  Orleans  v.  Macheea,  112 
La.   559,   36   So.   590. 

42.  Swift  v.  People,  62  111.  534, 
44  N.  E.  528,  33  L.  R.  A.  470; 
Groesch  v.  State,  42  Ind.  547. 

43.  in  re  Ruth,  32  Iowa  250. 

44.  In  re  Hoover,  30  Fed.  51. 

45.  See  chapters  VI  and  XI  herein. 
Where  by  the  laws  of  the  state  the 

sale  to  white  and  colored  people  in 
the  same  building  is  prohibited,  one 
who  seeks  to  conduct  a  saloon  for 
each  class,  must,  in  the  absence  of  a 
statute  to  the  contrary,  obtain  a  li- 
cense for  each  saloon.  State  ex  rel. 
Tax  Collector  v.  Falkenheiner,  123 
La.   617,  49   So.  214. 

46.  McAloon  v.  License  Commis 
sioners,  22  R.  I.  191,  46  Atl.  1047 
State  v.  Conley,  22  R.  I.  397,  48  Atl 
200.  See  also  Commonwealth  v.  As 
bury.  104  Ky.  320,  47  S.  W.  217 
Martz's  License,  12  Pa.  Super  Ct 
r,21. 

4T.  Commonwealth  v.  McCormick, 
150  Mass.  270,  22  N.  E.  911,  holding 
that  a  license  to  sell  liquors  in  a  one 
and  a  half  story  house  used  partly 
as  a  dwelling  and  partly  as  a  shop 
was  void. 


48.  See  chapters  VI  and  XI  herein. 

Thus  it  may  require  that  the  place 
where  the  traffic  is  carried  on  shall 
not  be  within  a  certain  distance  of  a 
church,  or  schoolhouse  Warren  Street 
Chapel  v.  Excise  Commissioners,  56 
N.  J.  L.  411,  29  Atl.  150,  holding 
that  the  prohibited  distance  must  be 
measured  by  the  nearest  mode  of  ac- 
cess. 

And  where  the  sale  of  liquors 
within  a  certain  distance  of  a  desig- 
nated church  was  prohibited  and  such 
church  was  completed  it  was  held 
that  it  was  immaterial  that  the  build- 
ing was  not  actually  being  used  as  a 
church.  Jones  v.  Commissioners,  106 
N.  C.  436,   11   S.  E.  514. 

But  the  mere  fact  that  a  church 
owns  land  upon  which  church  foun- 
dations have  been  laid  within  the  pro- 
hibited distance  of  the  place  for  which 
a  certificate  is  sought  does  not  bring 
such  place  within  the  prohibition. 
People  v.  Lammerts,  18  Misc.  R. 
(N.  Y.)    343,  40  N.  Y.   Supp.   1107. 

"What  constitutes  "  same 

street ". — Different  portions  of  what 
is  substantially  the  same  street  con- 
stituting practically  a  straight  thor- 
oughfare, though  laid  out  at  differ- 
ent times  and  called  by  different 
names  constitute  the  "  same  street " 


§   191 


LICENSES—  NAT!   UJJ    OF      U'J .  ISI.ATIYE    I'OWKliS. 


2-27 


which  forbids  the  granting  of  a  license  for  the  sale  of  Liquor  in 

less  than  a  certain  quantity  in  connection  with  a  grocery  or  other 
mercantile  business.49  It  is  also  within  the  power  of  the  legisla- 
ture to  provide  that  a  licensee  shall  post  his  license  in  a  con- 
spicuous place  in  his  place  of  business.60 

§  195.  Power  of  legislature  as  to  ammount  of  fee. 

The  state  may  properly  restrict  that  which  is  dangerous,  if 
unregulated,  to  public  morals  or  security,  by  the  requirement  of 
large  license  fees  and  it  is  immaterial  whether  the  licenses  re- 
quired are  by  way  of  regulation  or  for  the  purposes  of  revenue.51 


within  a  statute  prohibiting  the  sale 
of  liquors  within  a  certain  distance 
of  a  public  school  situated  on  the 
"  same  street."  Commonwealth  v. 
McDonald,  ICO  Mass.  528,  36  N.  E. 
483. 

Provisions  should  be  liberally 
construed. — Exceptions  contained  in 
a  liquor  license  law  in  respect  to 
churches  and  schools  should  be  liber- 
ally construed  in  their  favor  and 
strictly  against  applicants  for  li- 
censes within  the  prescribed  dis- 
tances. In  re  Herring  (X.  Y.  App. 
Div.  1900),  117  N.  Y.  Supp.  747. 

So  it  said  that  in  construing  a  stat- 
ute prohibiting  the  maintenance  of  a 
sali Km  within  a  certain  distance  of  a 
school :  "  In  view  of  its  obvious  pol- 
icy in  protecting  the  school  against 
tin-  evil  inlluences  of  the  saloon,  the 
statute  should  be  so  expounded  as  to 
accomplish  its  benign  intent,  and  to 
that  end  be  accorded  a  literal  or  a 
liberal  interpretation  as  may  most 
effectually  avert  the  apprehended  mis- 
chief." People  v.  Murray.  5  App.  Div. 
(X.  Y.)  441,  38  N.  Y.  Supp.  609,  39 
X.  Y.  Supp.  1130.     Per  Piyor,  J. 

Act  applicable  to  one  educa- 
tional institution  only  held  un- 
constitutional.—in  Missouri  an  act 


providing  that  "  no  dramshop  license 
shall  hereafter  be  granted  to  any  per- 
son to  keep  a  dramshop  within  five 
miles  of  any  state  educational  insti- 
tution which  now  has  enrolled  fifteen 
hundred  or  more  students  "  was  held 
to  be  a  special  and  local  law  in  vio- 
lation of  the  constitution  it  appear- 
ing that  there  was  only  one  state 
university  to  which  the  law  applied 
at  the  time  it  Avent  into  effect  and 
the  law  by  its  terms  being  limited  to 
such  localities  as  then  had  institu- 
tions of  learning  with  such  an  en- 
rollment and  not  capable  of  even  ap- 
plying to  other  portions  of  the  state. 
State  v.  Turner,  210  Mo.  77,  107 
S.   W.    10G4. 

i!>.  Peer  v.   Excise  Commissioners, 

70  X.  J.  L.  496,  57  At  I.   153. 

50.  Schwartz  v.  State,  32  Tex.  Cr. 
387,  24  S.  W.  28. 

51.  Appeal  of  Allyn,  (Conn.  1909), 

71  Atl.  794. 

The  legislature  has  a  very 
large  discretion  in  the  matter  of 
the  imposition  of  licenses  and  where 
it  is  in  the  exercise  of  the  police 
power,  in  the  regulation  of  a  business 
thai  is  regarded  as  pernicious  to  the 
public  it  has  the  sole  discretion  as  to 
the  sum  to  be  charged  as  a  license, 


228  LICENSES— NATURE  OF— LEGISLATIVE  POWERS.      [§    196 

In  this  connection  it  is  said  by  the  United  States  Supreme  Court 
that  the  liquor  traffic  "  may  be  controlled  and  regulated  by  the 
imposition  of  license  taxes  by  which  those  only  who  obtain  licenses 
are  permitted  to  engage  in  it.  Taxation  is  frequently  the  very 
best  and  most  practical  means  of  regulating  this  kind  of  business. 
The  higher  the  license,  it  is  sometimes  said,  the  better  the  regula- 
tion as  the  effect  of  a  high  license  is  to  keep  out  from  the  business 
those  who  are  undesirable  and  to  keep  within  reasonable  limits  the 
number  of  those  who  may  engage  in  it."  52 

§  196.  Payment  of  fee  and  mode  of. 

As  a  general  rule  it  is  a  condition  precedent  to  the  issuance  of 
a  valid  license  that  the  fee  therefor  shall  be  paid  in  advance.53  A 
license  issued  on  credit,  and  without  authority  to  so  issue  it,  is 


although  the  license  might  operate 
as  a  prohibition  against  the  business. 
Coper  v.  City  of  Elizabethtown,  30 
Ky.  Law  Rep.  706,  99  S.  W.  608. 

There  is  no  limit  to  the  discre- 
tion of  the  legislature  over  the  matter 
of  licensing  or  not  licensing  the  traffic 
in  liquors  or  the  conditions  upon 
which  it  may  make  the  granting  of 
a  license  dependent.  Schulherr  v. 
Bordeaux,  64  Miss.  59,  8  So.  201. 

A  brewery  which  has  paid  a  li- 
cense to  manufacture  and  sell  not 
exceeding  a  certain  number  of  bar- 
rels per  day  and  which  on  one  day 
in  the  year  manufactures  a  number 
of  barrels  in  excess  of  that  author- 
ized by  the  license  is  subject  to 
the  payment  of  the  higher  license 
fee  required  by  the  statute  where 
the  production  exceeds  such  num- 
ber, even  though  the  average  per 
day  for  the  year  is  within  the  num- 
ber permitted  by  the  license.  Ger- 
maina  Brewing  Co.  v.  Rutledge, 
(S.  C.  1009),  65  S.  E.  230. 

52.  Phillips   v.   Mobile,   208   U.    S. 


472,  479,  28  Sup.  Ct.  370.  Per  Mr. 
Justice  Peckham. 

53.  Arkansas. — Hencke  v.  Standi- 
ford,  66  Ark.  535,  52  S.  W.  1. 

Indiana. — Ristine  v.  Clements,  31 
Ind.  App.  338,  66  N.  E.  924. 

Michigan. — Doran  v.  Phillips,  47 
Mich.  228. 

Mississippi.  McWilliams  v.  Phil- 
lips, 51  Miss.  196. 

Nebraska. — Fry  v.  Kaessner,  48 
Neb.   133,  66  N.  W.  1126. 

New  Mexico. — Sandoval  v.  Meyers, 
8  N.  M.  636,  45  Pac.  1128. 

Oregon. — McLeod  v.  Scott,  21  Oreg. 
94,  26  Pac.  1061,  29  Pac.  1. 

Compare  Storms  v.  Commonwealth, 
105  Ky.  619,  49  S.  W.  541,  wherein  it 
has  been  decided  that  where  a  license 
is  issued  by  the  county  court  with- 
out the  payment  of  the  fee  by  the  li- 
censee, the  latter  is  protected  thereby 
and  that  it  would  seem  that  the  clerk 
issuing  the  license  would  be  respon- 
sible for  such  amount  as  he  ought 
to  have  collected  and  that  the  li- 
cense    would    owe     him     that     sum. 


§    11)71      LICENSES— NATURE  OP— LEGISLATIVE    POWERS.  229 

held  not  to  be  voidable  merely  but  void  in  the  sense  that  it  may 
be  assailed  even  in  a  collateral  proceeding.54  And  liquor  licenses 
as  well  as  taxes  and  other  public  charges  are  payable  in  money, 
unless  provision  is  made  by  statute  for  their  li  [nidation  in  some 
other  manner  or  by  some  other  means.66  In  Oklahoma  however 
it  has  been  held  proper  to  make  payment  for  a  liquor  license  to  a 
county  treasurer  with  county  warrants  which  have  been  regis- 
tered and  not  paid  for  want  of  funds.50  But  a  tender  of  the  cer- 
tificate of  the  police  commissioners,  whose  office  is  created  by  law, 
and  which  provides  that  their  certificates  of  indebtedness  shall  be 
received  in  payment  of  all  city  taxes,  in  payment  of  a  license, 
is  not  a  sufficient  tender,  a  license  fee  not  being  a  tax.57 

§  197.  Same  subject  continued. 

Where  the  payment  of  a  license  fee  is  required  to  be  made  in 
advance  and  there  is  no  provision  by  statute  or  otherwise  as  to 
payment  in  other  than  money  the  officials  charged  with  the  duty 
of  issuing  the  license  have  no  authority  to  accept  a  note  in  pay- 
ment and  where  one  is  so  given  it  is  held  in  some  cases  to  be  with- 
out consideration  and  void.68  A  municipal  corporation  may  how- 
ever, under  a  sufficiently  broad  delegation  of  power  to  it  accept  a 
note  upon  the  issuance  of  a  license  and  collect  the  same.  Thus  in 
Alabama  it  has  been  decided  that  a  municipal  corporation  having 
general  power  to  contract,  and  be  contracted  with,  in  reference  to 
municipal  affairs  and  being  expressly  authorized  "to  provide  for 
licensing  and  regulating  retailers  of  liquors  within  its  limits  and 
to  fix  the  sum  to  be  paid  "  therefor,  may  take  a  note  for  the  price 
of  a  license,  instead  of  requiring  cash  and  on  failure  to  pay  the 

B4.  Zielke  v.  State,  42  Neb.  750,  GO  <"»7.  City  of  East  St.  Louis  v.  Weh- 

N.  W.  1010.  rung,    46    111.    302. 

•-.•-..  Lee  t.  Roberts,  3  Okla.  10G,  41  ^  Hencke   v'   Standiford,  06  Ark. 

535.   52    s.    YV.    l  ;    Ristine   v.    Clem- 
595"  outs.  31  [nd.  App.  338,  66  X.  E.  924. 

56.  Lee  v.  Roberts,  3  Okla.  106,  41  Doran  v.  Phillips.  47  Midi.  228;  City 
Tac.  595.  of  Craig  v.   Smith.   31    M<>.   App.   2S6. 


230  LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§    198 

note,  may  maintain  assumpsit  against  the  maker.59  And  in  Ken- 
tucky it  has  been  decided  that  a  city  of  the  fifth  class  has  au- 
thority under  its  charter  to  accept  notes  in  payment  of  license 
fees  and  may  enforce  their  collection.69  And  in  Georgia  it  has  been 
held  that  though  an  official  is  only  authorized  to  receive  cash  for 
a  license  yet  if  he  receives  part  in  cash  and  a  note  for  the  bal- 
ance and  the  maker  has  received  his  license  such  note  is  collecti- 
ble.61 In  Mississippi  it  is  decided  that  where  notes  are  so  taken 
the  official  receiving  them  in  payment  is  liable  for  the  amount  of 
the  fee.62 

§  198.  Enforcing  payment  of  tax  or  fees. 

There  are  several  cases  in  which  it  has  been  decided  that  a  license 
tax  is  not  a  penalty  but  in  the  nature  of  a  debt  which  the  state, 
county  or  city,  to  which  it  is  payable  may  recover  in  a  civil 
action.63  On  the  contrary,  however,  it  is  said  that  a  person  owes 
nothing  for  a  license  until  he  has  taken  it  out  and  that  where  a 
person  engages  in  the  liquor  traffic  without  taking  out  the  required 
license  he  does  not  thereby  become  indebted  for  the  amount  of  such 
license.64  So  in  a  late  case  in  Georgia  it  is  decided  that  whether 
or  not  a  person  should  have  paid  a  specific  tax  imposed  upon  the 

59.  Powers  v.  Mayor  and  Council  of  tain.  Allsman  v.  Oklahoma  City, 
Decatur,  54  Ala.  214.  21  Okla.  142,  95  Pac.  468. 

60.  Searcy  v.  City  of  Lawrence,  20  In  Michigan  in  an  early  case  a  war- 
Ky.  Law  Rep.  1920,  50  S.  W.  534.  rant    issued    to    the    sheriff    by    the 

61.  County  of  Appling  v.  MeWil-  county  treasurer  was  held  suf- 
liams,  69  Ga.  840.  ficient,  if  fair  on  its  face,  to  protect 

«-•  McWilliams     v.     Phillips,     51  the  sheriff  in  proceeding  against  him 

Miss.  196.  i'1    tort    for    seizing   the    property   of 

63.  City  of  Sacramento  v.  Dillman,  the   plaintiff.      Wood   v.    Thomas,    38 

102  Cal.  107,  36  Pac.  385;   Marshall  Mich.  686. 

County  v.  Knoll,  102  Iowa  573,  579,  64.  City  of  Chicago  v.  Enright,  27 

69     X.    W.     1146,    71     N.    W.    571;  111.   App.    559,   citing   Santa    Cruz   v. 

Aulanier    v.    The    Governor,    1    Tex.  Santa  Cruz,  R.  R.  Co.,  56  Cal.   143. 

653.  See  Straub  v.  Gordon,  27  Ark.  625: 

An  action  will  lie  to  recover  a  sum  Owensboro  v.  Fields,   (Ky.  1907),  102 

certain  whenever  one  has  the  money  S.  W.  1184;  State  v.  Fragiacomo,  70 

mother    which    he    in    equity    and  Miss  799,   14  So.  21. 
good   conscience   has   no   right   to   re- 


§    198]      LICENSES— NATURE   OK— LE<;  ISLATI  YE    POWERS.  231 

sale  of  malt  liquors  by  manufacturers  the  tax  collector  ha.s  no  au- 
thority to  issue  an  execution  against  him.68  In  this  connection  it 
may  be  remarked  that  by  the  statutes  in  force  it  is  ordinarily 
made  a  condition  precedent  to  the  right  to  engage  in  the  traffic 
that  a  license  shall  be  issued,  and  the  fee  paid  in  advance  and  in 
case  one  engages  in  such  traffic  without  a  license  he  is  made 
liable  to  a  criminal  prosecution.  The  law  affixes  the  penalty  for 
selling  liquor  without  the  required  license.  The  license,  which 
must  be  a  valid  one,  is  essential  to  a  lawful  selling,  and  when 
obtained  protects  the  licensee  for  sales  made  thereunder  and  with- 
out which  the  sales  would  be  unlawful  and  the  seller  liable  to 
criminal  prosecution  as  provided  by  statute.  If  no  license  has 
been  issued  the  seller  is  no  way  protected  in  respect  to  sales 
made  by  him  and  having  no  rights  of  a  licensee  he  should  not 
be  liable  for  the  license  fee  unless  the  statute  renders  him  so 
liable  therefor.  In  some  states  such  a  right  to  recover  a  tax 
or  fee  is  expressly  given  by  the  law  of  the  state.06  So  a  pro- 
vision in  a  bill  of  rights  that  no  man  shall  "  be  deprived  of 
his  liberty  except  by  the  law  of  the  land  or  the  judgment  of  his 
peers  does  not  forbid  the  state  to  enforce  the  collection  of  a  tax  by 
imprisonment  of  the  delinquent  when  no  personal  property  can  be 
found  by  the  officer  out  of  which  to  make  the  tax.07  And  a  statute 
requiring  the  payment  of  a  tax  and  the  obtaining  of  a  license  and 
providing  that  in  case  of  a  failure  to  do  so  the  payment  of  the  tax 


05.  Brewer  v.  Nutt,   118   Ga.   257,  v.    Adkins,    108    Ga.    228,    33    S.    E. 

4f)  S.  E.  269.  881. 

In  earlier  decisions  in  Georgia,  66.  Under  the  statute  in  Idaho 
however,  a  tax  collector  was  held  to  if  one  fails  to  take  out  the  license  re- 
be  authorized  to  issue  an  execution  quired  by  law  and  conducts  the  liq- 
for  an  unpaid  liquor  tax.  Sight  v.  nor  traffic  in  violation  of  law  a  suit 
Fleming,  74  Ga.  593,  holding  that  an  may  be  brought  in  the  name  of  the 
affidavit  of  illegality  was  insufficient  state  for  the  license  fee.  Bingham 
where  fi.  fa.  issued  by  tax  collector  County  v.  Fidelity  and  Deposit  Co., 
of  a  county  against  one  to  recover  13  Ida.  34,  88  Pac.  829. 
"  special  slate  taxes  for  selling  67.  Commonwealth  v.  Byrne,  20 
spirituous      liquors."        See      Sasser  Gratt.   (Va.)    L65. 


232  LICENSES—NATURE  OF— LEGISLATIVE  POWERS.      [§    199 

may  be  enforced  together  with  the  payment  of  a  certain  per  cent 
thereon  to  cover  costs  is  not  in  conflict  with  a  statute  making  it  a 
penal  offense  to  sell  without  a  license  and  providing  for  the 
punishment  of  such  offense.68 

§  199.  Right  to  recover  fee  paid. 

It  may  be  stated  as  a  general  rule  that  one  who  has  paid  a 
license  fee  or  an  amount  in  excess  of  that  which  he  is  obliged  to 
pay  can  not  recover  back  either  the  amount  of  the  fee  or  the 
amount  in  excess  of  the  legal  fee  where  the  payment  by  him  is  a 
voluntary  one.69     As  to  what  renders  a  payment  a  voluntary  one 


6S.  New  v.  State,  34  Tex.  100. 

69.  Arkansas. — Payton  v.  Hot 
Spring  Co.,  53  Ark.  23G,  13  S.  W. 
764. 

Florida. — Johnson  v.  Atkins,  44 
Fla.  185,  32  So.  879. 

Georgia. — Commissioners  v.  Norris, 
G2  Ga.  538. 

Indiana. — Town  of  Brazil  v.  Kress, 
55  Ind.  14,  overruling  Town  of  Prince- 
town  v.  Vierling,  40  Ind.  340;  and 
Town  of  Ligonier  v.  Ackerman,  46 
Ind.  552,  15  Am.  Rep.  323. 

Iowa. — Guedert  v.  Emmet  county, 
116  Iowa  40,  89  N.  W.  85,  holding 
surety  on  land  not  entitled  to  re- 
cover. 

Louisiana. — Mayor  and  Board  of 
Trustees  v.  Moss  Hotel  Co.,  112  La. 
525,  36  So.  552. 

Massachusetts. — Emery  v.  Lowell, 
127  Mass.  138. 

Mississippi. — Tupelo  v.  Beard,  56 
Miss.  532. 

A  '  w  Hampshire. — See  Sargent  v. 
Little,  72  N.   H.   555,   58   Atl.  44. 

A  -  //•  York.  Baker  v.  Bucklin,  43 
App.   Div.   336,  GO  N.  Y.   Supp.  294. 

Only  a  moral  obligation  where 
money  is  wrongfully  received  by  a 
city  for  a  license  issued  by  it.  Any 
right  to  recover  the  same  rests  simply 
on  a  moral  obligation  on  the  part  of 


the  city  to  repay  it.  Bentley  v.  City 
of  Raleigh,  130  N.  C.  209,  213,  41 
S.  E.  281,  58  L.  R.  A.  178. 

A  liquor  tax  paid  before  the 
approval  of  the  required  bond 
cannot  be  recovered  back  from  the 
township  receiving  it.  Curry  v. 
Township  of  Tawas,  81  Mich.  355,  45 
N.  W.  831. 

Money  paid  pursuant  to  the 
provisions  of  an  invalid  ordi- 
nance adopted  under  an  invalid 
statute  is  a  voluntary  one  and  can- 
not be  recovered.  Town  of  Edinburg 
v.  Hackney,  54  Ind.  83. 

Where  cities  were  transferred 
by  an  order  of  the  circuit  court 
from  one  class  to  another  by 
which  a  larger  license  fee  was  ex- 
acted and  such  act  was  subsequently 
held  to  be  invalid  it  was  decided  that 
the  excess  of  the  fee  required  by  the 
class  of  cities  to  which  these  cities 
were  transferred  could  not  be  re- 
covered as  the  payment  was  to  a  de 
facto  city  of  such  class  and  the  regu- 
larity of  the  government  of  these 
cities  as  belonging  to  that  class  not 
having  been  questioned  by  the  state 
the  plaintiffs  could  not  question  it. 
Town  of  Providence  v.  Shackelford, 
106  Ky.  378,  50  S.  W.  542. 

One   who    has   obtained    a   city    li- 


§    199]     LICENSES— NATURE   OF     LEGISLATIVE   POWERS. 


233 


it  may  be  said  that  it  is  of  such  a  character  where  there  was  no 
fraud,  no  mistake  of  facts  and  no  legal  force  compelling  the  pay- 
ment,70 or,  as  the  rule  was  stated  in  an  early  Indiana  case,  if  the 
payment  was  made  without  protest,  and  not  to  procure  the  release 
of  the  plaintiff's  person  or  property  and  without  the  use  of  any 
force,  fraud,  menaces  or  intimidation  by  the  defendant  or  its 
agents,  the  payment  is  a  voluntary  one  and  cannot  be  recovered.71 
So  money  paid  for  a  license  issued  by  commissioners  without  au- 
thority to  so  act  cannot  be  recovered  back  by  the  one  paying  it 
though  he  was  assured  by  the  commissioners  that  they  had  full 
power  and  authority  to  issue  the  license.72  And  where  an  exces- 
sive liquor  license  fee  is  demanded  in  good  faith  but  under  a  mis- 
apprehension of  lawT,  one  who  pays  the  same  cannot  recover  back 
the  excess  and  the  fact  that  business  necessities  compelled  the  ob- 
taining of  the  license  will  not  alter  the  voluntary  character  of 
such  payment.73     Again  one  who  has  voluntarily  paid  a  part  of 


cense  and  paid  the  amount  of  fee  re- 
quired can  not,  though  he  has  not 
used  the  same,  repudiate  it  and  re- 
cover back  the  amount  paid  merely  be- 
cause subsequent  to  the  issuance  of 
his  license  the  amount  of  the  fee  was 
lowered.  Williams  v.  City  Council, 
68   Ga.    81G. 

A  complaint  against  a  town  to 
recover  money  paid  for  a  license  al- 
leging that  the  money  was  extorted 
from  the  plaintiff  by  the  officers  of 
the  town,  and  that  it  was  paid  to 
avoid  arrest,  fine  and  imprisonment 
and  that  repayment  has  been  de- 
manded is  good.  Town  of  Princeton 
v.  Vierling,  40  Ind.  340. 

■When  question  whether  pay- 
ment voluntary  one  of  law.— 
The  question  whether  payments  made 
for  the  issuance  of  a  license  were 
voluntarily  made,  where  the  facts 
are  undisputed  is  one  of  law.  Eslow 
v.  City  of  Albion,  153  Mich.  720, 
117  N.  W.  328. 


Evidence      held      immaterial.— 

In  an  action  against  a  city  to  recover 
back  monthly  payments  of  the  license 
fee  for  keeping  a  saloon,  on  the  theory 
that  the  payments  were  made  invol- 
untarily, under  threats  of  arrest,  it 
was  held  that  the  evidence  did  not 
justify  the  claim  that  they  were  so 
made  and  that  evidence  of  the  re- 
ceipt, agreement,  and  protest  made 
the  year  previous  relative  to  the  li- 
cense fee  of  that  year,  afterwards  re- 
turned, was  properly  excluded  as  im- 
material on  the  question  whether 
payments  were  voluntary  or  not.  Es- 
low v.  City  of  Albion,  153  Mich.  720, 
117  N.  W.  328. 

70.  Welch    v.    Mayor   &    Council   of 
Marion.    IS   Ala.  291. 

71.  Town  of  Edinburg  v.  Hackney, 
54   Ind.  83. 

72.  Tat  uin  v.  Town  of  Trenton,  85 
Ga.  468,  11   S.  E.  705. 

73.  Custin  v.  City  of  Viroqua,  G7 
Wis.  314,  30  N.  W.  515. 


234  LICENSES— NATUEE   OF— LEGISLATIVE  POWERS.      [§   200 

the  license  fee  required  cannot  recover  the  same  from  the  officer 
to  whom  it  was  paid  though  no  license  was  ever  in  fact  issued  as 
the  money  so  paid  voluntarily  becomes  the  property  of  the  state 
to  which  it  is  due  and  the  officer  receiving  it  is  liable  to  the  state 
therefor,  and  the  fact  that  it  may  not  yet  have  been  paid  to  the 
state  is  immaterial  as  in  such  case  the  state  has  its  remedy 
against  its  officer  to  recover  the  same.74  jSTor  can  one  who  has 
made  a  part  payment  of  the  amount  of  the  license  fee  and  no 
license  is  issued  because  of  a  defective  application  and  failure  to 
give  the  required  bond,  recover  back  such  amount  as  his  failure  to 
obtain  the  certificate  or  license  is  due  to  his  failure  to  comply 
with  the  statutory  requirements.75 

§  200.  Right  to  recover  fee  continued. 

One  who  has  paid  under  protest  the  sum  required  of  liquor 
dealers  under  a  statute  subsequently  held  unconstitutional  may 
recover  back  the  sum  so  paid.76  And  where  a  statute  forbid  the 
granting  of  a  license  for  a  longer  period  than  six  months  it  was 


74.  Johnson  v.  Atkins,  44  Fla.  185,  not  be  distinguished  from  other  funds 

32  So.  879.  of  the  county,  and  can  never  become 

So  in   Oregon   it   has   been   decided  the     foundation     for     an     action     for 

that   under   the   statute    the    tax    re-  money      had      and     received,      either 

quired  must  be  paid  into  the  county  against  the  county  or  its  treasurer." 

treasury  before  the  license  can  issue  Per  Skinner,  J. 

and  that  if  the  county  refuse  to  issue  A  county  treasurer  receiving 
the  license  the  party  paying  it  cannot  money  in  Lis  official  capacity  as  de- 
recover  it  back.  McLeod  v.  Scott,  21  posit  for  a  liquor  license  is  not  in- 
Oreg.  94,  20  Pac.  10G1,  29  Pac.  1,  fob  dividually  liable  to  make  a  return 
lowing  Trainor  v.  County  of  Mult-  thereof  on  failure  of  licensing  au- 
nomah,  2  Oreg.  214,  in  which  it  was  thorities  to  grant  the  license.  Hem- 
said :"  The  payment  of  the  amount  re-  rich  Bros.  Brew.  Co.  v.  Kitsap  Co., 
quired  by  statute,  is  a  condition  pre-  45  Wash.  454,  88  Pac.  838,  9  L.  R.  A. 
ccilciit  to  his  applying  for  a   license,  (N.  S.)   910. 

and  is  not  a  deposit  in  the  hands  of  75.  Scalzo  v.  Sackett,  30  Misc.  R. 

the   county    treasurer,    which   can    be  (X.    Y.)    543,    G3    N.    Y.    Supp.    820. 

withdrawn  at  the  pleasure  of  the  ap-  See    Hague    v.    City    of    Ashland,    91 

plicant,    but    goes    at    once    into    the  Wis.  029,  65  N.  W.  508. 

county  treasury,  and  becomes  a   part  76.  Catoir   v.    Watterson,    38    Ohio 

of  the  general  county  funds;  and  can-  St.  319. 


§   200]      LICENSES—NATURE  OP— LEGISLATIVE   POWERS.  235 

held  that  one  who  paid  under  protest    a  license  fee  for  twelve 
months  to  a  municipality  upon  the  promise  of  tin-  common  council 

to  repay  one-half  if  the  license  was  held  illegal  I'm-  the  la.-t  six 
months  upon  the  license  being  held  to  be  illegal  to  this  extent, 
was  entitled  to  recover  one-half  the  fee.77  Bu1  the  fact  of  a  mere 
protest  without  legal  compulsion  is  held  not  to  rescue  - 
payment  from  its  character  as  a  voluntary  one.78  In  - 
states  provision  is  made  by  statute  for  a  return  of  money  paid 
for  a  license  where  the  application  is  refused.  Under  a  statute 
of  this  character  providing  that  in  case  a  license  is  denied 
the  money  paid  to  the  county  treasurer  shall  be  returned  to 
the  applicant  "  upon  the  warrant  of  the  board  of  county  com- 
missioners "  the  word  "  warrant  "  has  been  construed  as  mean- 
ing authority  simply  and  not  the  municipal  security  known  as  a 
county  warrant.79  In  Xebraska  it  has  been  decided  that  where  a 
liquor  license  has  been  issued  by  a  city  council  and  on  appeal 
such  license  is  cancelled  the  licensee  is  entitled  to  a  repayment 
pro  rata  of  the  sum  paid  for  the  unexpired  term.89  And  a 
similar  rule  has  been  followed  under  a  Isew  York  statute.81 
What  would  seem  to  be  the  proper  rule  in  such  a  case  is  an- 
nounced in  a  recent  decision  in  Kentucky  in  which  it  was  de- 
clared that  where  money  is  paid  under  a  clear  mistake  of  law  or 
fact,  which  in  equity  and  good  conscience  should  not  be  retained 
by  the  party  receiving  it,  a  recovery  will  be  allowed  and  it  was 
decided  that  this  doctrine  applied  where  a  judgment  is  rendered 
declaring  a  license  to  be  valid  and  in  reliance  thereon  the  license 
fee  is  paid  in  which  case  it  may  subsequently  be  recovered  where 

77.  Nurnberger  v.  Barnwell,  42  S.  81.  The   court   may   order   restitu- 
te  158j  20  S.  E.   14.  tion   of  the  pro   rata   amount  of  the 

78.  Welch   v.  Mayor  &  Council  of  sum  paid  for  a  liquor  tax  certificate 
Marion,  -IS  Ala.  291.  to   one   to    whom    the    certificate   was 

79.  State  v.  Buechler,  10  S.  D.  156,  issued  upon  an  order  reversed  on  ap- 
72  N.  W.  114.  peal.     People  v.  Sackett,  15  App.  Div. 

so.  Chamberlain    v.    City    of    Te-       (N.  Y.)   290,  44  X.  Y.  Supp.  593. 
cumseh,  4::  Neb.  221,  61  N.  W.  632. 


236 


LICENSES— NATURE   OF— LEGISLATIVE   POWERS.      [§   201 


such  judgment  is  reversed  on  appeal.82  But  in  Indiana  it  has 
been  decided  that  where  an  applicant  who  is  granted  a  license  by 
the  county  board  under  the  statute  pays  the  license  fee  and  on 
appeal  to  the  circuit  court  the  license  is  refused  within  the  year 
covered  by  the  license  the  county  board  is  not  bound  to  repay  to 
him  any  part  of  the  money,  the  payment  by  him  having  been 
voluntary.83 


§  201.  Provisions  as  to  whom  license  may  issue  to. 

The  legislature  also  has  the  power  to  limit  by  a  uniform  law 
the  issuance  of  a  license  to  persons  only  of  a  certain  class  or 
classes.84  Where  the  privilege  of  conducting  the  liquor  traffic  is 
limited  to  a  particular  class  of  persons  who  comply  with  certain 
prescribed  conditions  before  a  person  can  rightfully  exercise  such 
privilege  he  must  bring  himself  within  the  law  and  show  that  he 
has  fully  met  all  its  terms  and  conditions.85  In  the  exercise  of 
this  power  it  is  competent  for  the  legislature  to  limit  the  right  to 


82.  Scott  v.  Board  of  Trustees, 
(Ky.   C.  A.   1909),   116   S.  W.   788. 

In  this  state  where  one  obtained  a 
state  license  relying  upon  statements 
by  the  municipal  authorities  that  if 
obtained  a  municipal  license  would 
be  granted  and  also  acting  upon  such 
statement  expended  money  in  renting 
a  place  and  prearing  for  business  and 
was  subsequently  required  to  pay 
more  for  a  liquor  license  than  was 
authorized  by  the  city  charter,  such 
payment  was  held  not  a  voluntary 
one  and  it  was  decided  that  there 
might  be  a  recovery  from  the  city  of 
the  amount  paid  in  excess  of  what 
the  charter  allowed.  Bruner  v.  Clay 
City,  100  Ky.  5G7,  38  S.  W.  10G2. 

And  it  has  also  been  held  that 
liquor  dealers  who  have  paid  a  li- 
cense fee  under  a  law  after  the  enact- 
ment of  a  repealing  statute,  may  re- 
cover the  amount  so  paid  although  the 
payment   may    have   been    voluntary, 


they  having  no  practical  mode  at  the 
time  of  demand  for  resisting  payment 
being  under  the  duress  of  the  pro- 
visions of  the  penal  statute.  Berg- 
meyer  v.  Greenup  County,  19  Ky.  Law 
Rep.  1599,  44  S.  W.  82. 

And  in  another  case  in  Kentucky 
it  is  decided  that  money  paid  under 
the  mistaken  belief  that  the  ordi- 
nance was  in  fact  valid  and  enforcible 
whereas  it  was  void  by  reason  of  the 
fact  of  want  of  authority  under  the 
charter  to  pass  it  could  be  recovered. 
Bruner  v.  Stanton,  19  Ky.  Law  Rep. 
1514,  43  S.  W.  411.  See  also  Feche- 
imer  v.  City  of  Louisville,  84  Ky. 
306;   2  S.  W.  65. 

83.  Board  of  Commissioners  v. 
Kreuger,  88  Ind.  231. 

84.  Foster  v.  Police  Commissioners, 
102  Cal.  483,  37  Pac.  763,  41  Am.  St. 
Rep.    194. 

85.  City  of  Montpelier  v.  Mills, 
171  Ind.  175,  85  N.  E.  6. 


§   202]      LICENSES— NATURE  OP— LEGISLATIVE  POWERS.  237 

every  "white  male  inhabitant."80  And  the  United  States  consti- 
tution is  not  violated  by  a  statute  providing  that  licenses  shall 
only  be  granted  to  citizens  of  the  United  States  of  temperate 
habits  and  good  moral  character,87  or  by  a  statute  which  restricts 
the  granting  of  licenses  to  residents  of  the  state,88  or  to  the  mal 
inhabitants  of  the  state,89  or  by  a  statute  providing  that  any  per- 
son desiring  a  license  for  the  sale  of  liquors  shall  be  a  citizen  of 
the  state  and  a  resident  of  the  county  wherein  such  license  is 
sought.90  And  in  an  early  case  in  Missouri  it  was  held  that  the 
legislature  could  provide  for  two  years'  residence  in  the  state  as 
a  prerequisite  to  the  right  to  a  license  and  that  an  act  so  provid- 
ing was  not  in  violation  of  the  United  States  Constitution.91  And 
a  statute  providing  that  no  license  shall  be  issued  unless  the  appli- 
cant shall  have  been  "  a  continuous  resident  of  the  township  in 
which  the  application  is  made  "  for  a  certain  period  of  time  will 
be  construed  as  meaning  township  and  the  courts  will  not  add 
the  word  "  ward  "  thus  imposing  a  further  restriction  which  the 
legislature  did  not  see  fit  to  prescribe.92  In  the  application  of  the 
rule  that  one  not  aggrieved  or  prejudiced  by  a  law  can  not  question 
its  validity  it  has  been  held  that  a  statute  which  excludes  women 
and  non-residents  from  the  right  to  a  license  cannot  be  assailed 
by  a  male  inhabitant  of  the  state  upon  whom  such  a  right  is 
conferred.93 

§  202.  License  laws  as  affecting  druggists— physicians. 

Statutes  prohibiting  the  sale  of  intoxicating  liquors  without  a 

86.  Thoraasson    v.    State,    15  Ind.  N.  E.  883,  9  L.  R.  A.  664  U.  S.  Const. 
449.  Art.  IV,  §  2. 

87.  Trageser  v.  Gray,  73  Ind.  250,  W>.  De    Grazier    v.    Stephens,    101 
20  Atl.  905,  9  L.  R.  A.  780,  25  Am.  Tex.    l!»4.    Kir.   S.   \V.   992. 

St.  Rep.  587,  U.  S.  Const.  Art.  14.  S  1.  »*«  Austin  v.  State,  10  Mo.  591. 

88.  Mette    v.    McGuekin,    18    Neb.  92.  In    re   Burns,    (Ind.    1009).   87 
323,  25  N.  VV.   338.  affg   149    U.   S.      N.  E.  1028. 

781,  13  Sup.  Ct.  1050.  37  L.  Ed.  !>:.'.>.  !>•**•  Wagner    v.    Town    of    Garrett, 

U.  S-  Const.  Art.   IV.  _>.  118    Ind.    114.  20   N.   E.    706. 

89.  Welsh  v.  State,  12G  Ind.  71,  25 


038  LICENSES— NATUEE   OF— LEGISLATIVE   POWERS.      [§   203 

license  and  which  contain  no  exception  in  favor  of  druggists  and 
pharmacists  have  as  a  general  rule  been  held  to  apply  to  this  class 
of  persons,  and  to  prohibit  such  sales  by  them  even  though  made 
in  good  faith  for  medicinal  purposes.04  And  where  a  statute  con- 
tains certain  exceptions  in  favor  of  sales  by  druggists  one  who  as 
a  druggist  desires  to  make  sales  which  do  not  come  within  such 
exceptions  must  comply  with  the  general  license  laws  of  the 
state.95  A  druggist,  however,  who  is  taxed  under  the  same  law 
as  other  liquor  dealers  is  subject  to  the  same  burdens  and  entitled 
to  the  same  rights  and  privileges.96  In  connection  with  the  sale 
or  disposition  of  liquors  for  medical  purposes  it  has  also  been  de- 
cided that  a  practicing  physician  has  no  right,  by  virtue  of  his 
profession,  to  dispense  intoxicating  liquor  to  his  patients  for  the 
purpose  of  medicine  unless  he  hold  a  permit  to  deal  in  such 
liquors.97 

§  203.  Local  boards  may  be  authorized  to  regulate  and  license. 

Local  boards  may  be  invested  by  the  constitution  or  by  the 
legislature  with  power  to  regulate  the  liquor  traffic  and  to  grant 

94-  Alabama.     Carson   v.   State,   69  cal   purposes   it  is  necessary  that  he 

Ala.  235.  should  be  engaged  principally  in  sell- 

Illinois.     Wright  v.  People,  101  111.  ing  drugs   and   medicines,   though   he 

126.  may  incidentally  admit  into  his  store 

Kentucky. — Commonwealth  v.  Pow-  and    may    vend    articles    not    strictly 

ell,  22  Ky.  Law  Rep.  1932,  62  S.  W.  under  the  denomination  of  drugs  and 

19;     Stormes    v.    Commonwealth,    20  medicines.      State   v.    Wells,    28    Mo. 

Ky.  Law  Rep.  1434,  49  S.  W.  451.  565. 

Missouri. — State  v.  Wells,  28  Mo.  »6.  Gibson    v.    State,    34    Tex.    Cr. 

565.  218,  29   S.  W.   1085,  holding  that  a 

Nebraska. — Brown  v.  State,  9  Neb.  local   option   law  suspended   the  gen- 

189;   2  N.  W.  214.  eral  prior  law  as  to  the  payment  of 

{>r»-  Thomasson  v.  State,  70  Ala.  20 ;  an   occupation   tax   and   the   right  to 

The    Druggist    Cases,    85    Tenn.    449,  sell  liquors  and  that  a  druggist  came 

•'!    S.    W.    490;    Preuzel    v.    State,    35  within    the    provisions    of    the    local 

Tex.  Cr.  27  \.  :;::  S.  \V.  350.  option  law  the  same  as  others. 

To  render  a  person  a  druggist  »7.  State  v.  Benadom,  7fl  Iowa  90, 

within  the  meaning  of  an  act  to  tax  44  N.  W.  218.     State  v.  Fleming,  32 

and   license    merchants   so   as  to   an-  Kan.   588,  5  Pac.   19;   Holt  v.  State, 

thorize    him    to    soil    liquors    in    any  62  Neb.  134,  86  N.  W.  1073. 
quantity    when    used    only    for    medi- 


§   1*03]      LICENSES— NATURE   OF— LEGISLATIVE    POWERS.  239 

licenses  in  the  absence  of  constitutional  restraint.98  So  undi  c  a 
constitutional  provision  that  "any  county,  city,  town  or  township 
may  make  and  enforce  within  its  limits  all  such  local,  police, 
tary  and  other  regulations  as  are  not  in  conflicl  with  gem  ral 
laws  "  it  has  been  held  in  California  that  the  board  of  supers  i 
of  a  county  has  power  to  regulate  the  sale  of  spirituous  liquors 
within  the  county  by  imposing  a  license  tax.;,;>  And  a  county 
ordinance  has  been  held  to  bo  valid  by  which  a  higher  license  is 
imposed  upon  saloons  which  are  outside  the  limits  of  incorporated 
towns  and  cities  than  upon  those  which  are  within.1 

OS.  State  v.  Dwyer,  21  Minn.  512,  »»•     Ex  parte  Wolters,  65  Cal.  269, 

holding  that  such  power  could  be  dele-  3  Pac.  894,  citing  in  this  connection 

gated  to  the  board  of  supervisors  of  In  re  .Stuart,  61   Cal.  375. 
a  township.     See  chapter  IX   herein  1.  Ex  parte  Stephens,  114  Cal.  278, 

as  to  power  of  municipal  corporations.  46   Pac.   86. 


24(j  LICENSES— MUNICIPAL  POWERS.  £§   204 


CHAPTER  X. 

LICENSES— MUNICIPAL  POWERS. 

Section  204.  State  may  delegate  power  to  license  to  municipalities. 

205.  Nature  of  power  and  exercise  of. 

206.  Exercise  of  power  continued. 

207.  Power  to  prescribe  penalty. 

208.  Failure  or  refusal  of  city  to  license. 

209.  Grants  strictly  construed — Power  must  be  clearly  given. 

210.  Must  not  exceed  power  granted. 

211.  Must  not  discriminate — Interstate  commerce. 

212.  Power  under  general  welfare  clause  in  charter. 

213.  Power  must  be  exercised  by  ordinance. 

214.  Right  to  impose  fee  or  tax  generally. 

215.  Discretion  as  to  amount  of  fee. 

216.  Fee  must  not  be  prohibitory. 

217.  Amount  of  fee  as  affected  by  state  fee. 

218.  City  may  require  license  fee  although  state  also  does. 

219.  Power  to  impose  conditions  and  make  regulations. 

220.  Conditions  as  to  revoking. 

221.  Prescribing  limits  for  licensing  traffic. 

222.  Ordinance  void  in  part. 

223.  Delegation  of  power  by  municipality. 

224.  License  subject  to  valid  ordinances. 

225.  As  to  repeal  of  powers. 

Sec.  204.  State  may  delegate  power  to  license  to  municipalities. 

The  legislature  may  grant  to  municipal  corporations  the  power 
to  regulate  their  own  internal  affairs  and  such  legislation  is  fre- 
quently deemed  advisable  owing  to  the  different  conditions  which 
may  exist  in  different  municipalities.  This  delegation  of  power 
may  include  the  right  to  license  or  tax  the  liquor  traffic  which 
power  is  inherent  in  the  state  and  where  so  delegated  the  munici- 
pality may  license  or  tax  such  traffic  in  accordance  with  the  power 
granted  and  subject  to  such  limitations  and  restrictions  as  may 


§   -'<>41 


LI<  ENSES   MINK  [PAL   POWERS. 


241 


be  imposed.1     So  it  is  said:  "  The  power  of  the  state  to  authorize 
the  license  of  all  classes  of  trades  and  employments  cannol   be 


1.  California. — Ex     parte     Braun, 

141  Cal.  204,  74  Pac.  780;  Foster  v. 
Board  of  Police  Commissioners,  102 
Cal.  483,  37  Pae.  703,  41  Am.  St. 
Rep.  7!)4;  Sacramento  v.  Dillman, 
102   Cal.   107,  36  Pac.   385. 

Colorado. — People  v.  Raims,  20 
Colo.  459,   39   Pac.   341. 

Florida.  Canova  v.  Williams,  41 
Fla.  509,  27  So.  30. 

Georgia. — Perdue  v.  Ellis,  18  Ga. 
586. 

Illinois.  People  v.  Mount,  186  111. 
560,  58  N.  E.  300;  Dennehy  v.  Chi- 
cago, 120  111.  027,  12  N.  E.  227;  Coul- 
terville  v.  Gillen,  72  111.  599. 

Indiana. — Emerich  v.  Indianapolis, 
118  Ind.  279,  20  X.  E.  795;  Lutz  v. 
Crawfordsville,  109  Ind.  406,  10  N.  E. 
411;    Wiley  v.   Owens,   39   Ind.  429. 

Kentucky. — Kniper  v.  Louisville, 
7   Bush.   599. 

Louisiana. — Mandeville  v.  Baudot, 
49  La.  Ann.  236,  21  So.  258,  citing 
Mayor  v.  White,  46  La.  Ann.  449,  15 
So.  15. 

Michigan. — Sherlock  v.  Stuart,  96 
Mich.  193,  58  X.  W.  845,  21  L.  R.  A. 
580  n. 

Minnesota. — Winona  v.  Whipple, 
24  Minn.  61 ;  Rochester  v.  Upman, 
111   Mim.    108. 

V<  w  -Jersey. — Cooke  v.  Mercer 
Pleas,  51  X.  J.  L.  85,  16  Ail.  176. 

North  Carolina. — Bailey  v.  Raleigh, 
130  X.  C.  209,  213,  41  S.  E.  281, 
58  L.  R.  A.   ITS. 

Oregon. — Matter  of  Schneider,  11 
Oreg.  288,  8  Par.  289. 

Washington.  Thornton  v.  Terri- 
tory, 3  Wash.  T.  482,   17   Pac  896. 

Wisconsin. — Richland  County  v. 
Richland  Center,  59  Wis.  591,  IS  X. 
W.   497. 

A  tax  may  be  imposed  and 
collected    upon    licenses    by    the 


local  authorities  when  expressly  au- 
thorized  by  the  legislature  so  to  do. 
State  v.  Stevens,  114  X.  C.  873,  19  S. 
E.   801. 

State  not  estopped  by  general 
liquor  law. — The  enactment  of  a 
liquor  tax  law  does  not  estop  the 
state  from  empowering  municipal 
corporations  to  further  regulate  the 
sale  of  liquor  by  requiring  saloon 
keepers  to  take  out  a  license.  Wolf 
v.  City  of  Lansing,  53  Mich.  367,  19 
X.  W.  38. 

Different  license  fee  in  differ- 
ent cities. — Tin-  fact  that  the  same 
license  fee  is  nol  required  in  all  the 
cities  of  the  state  is  no  valid  object  i"ii 
to  the  law  which  confers  power  on 
the  common  councils  in  cities  to  pass 
ordinances  fixing  the  rate  of  licenses 
within  their  limits.  Wiley  v.  Owens, 
39  Ind.  429. 

A  statute,  general  in  its  oper- 
ation to  confine  the  power  to  license 
the  sale  of  intoxicating  liquors  to  in- 
corporated towns  and  cities,  where  the 
police  force  is  more  efficiently  or- 
ganized and  can  better  control  it  has 
been  held  not  to  be  an  unauthorized 
exercise  of  the  police  power  of  the 
state  in  providing  against  the  evils  re- 
sulting from  the  traffic  in  such  liq- 
uors Streeter  v.  People.  69  111.  595, 
wherein  it  is  said:  "A  law  that  ap- 
plies to  and  confers  the  same  general 
powers  on  all  incorporated  towns  and 
cities  in  the  state  is  not  necessarily 
a  special  law,  and  is  not  inhibited 
by  any  provision  of  the  constitution 
againsl  special  legislation."  Per  Mr. 
Justice    Scott. 

A  charter  amendment  fixing  a 
license  fee  has  been  held  valid  in 
Washington.  Seattle  v.  ('lark.  28 
Wash.  717,  69   Pac.  407. 

Charter  amendment  conferring 


242 


LICENSES— MUNICIPAL   TOWERS. 


[§  204 


doubted.  And  there  is  just  as  little  doubt  of  the  power  to  delegate 
this  right  to  municipalities,  either  for  the  purpose  of  revenue,  or 
that  of  regulation."  2  And  it  has  been  decided  that  a  statute  pro- 
hibiting the  sales  of  liquor  in  a  certain  county  is  repealed  as  to  a 
city  in  that  county  where  the  legislature  subsequently  passes  a 
general  law  authorizing  the  common  countil  of  cities  of  a  certain 
class,  to  which  such  city  belongs,  to  license,  permit,  regulate  or 
restrain  the  sale  of  such  liquors.3 


power — Effect     on     local     option 

law.— Where  the  general  local  option 
law  has  been  voted  into  operation  in 
a  civil  district  of  which  a  city  forms 
a  part,  a  subsequent  amendment  to 
the  city  charter  conferring  for  the 
first  time  authority  on  the  city  coun- 
cil to  license  the  liquor  traffic  re- 
peals the  local  option  law  so  far  as 
the  city  is  concerned.  Tabor  v.  Lan- 
der, 94  Ky.  237,  21  S.  W.  1056,  hold- 
ing also  that  the  power  to  license  and 
tax  in  such  case  must  mean  exclusive 
power  and  that  therefore  the  general 
local  option  law  cannot  again  be 
voted  into  operation  in  the  city.  See 
also  Hall  v.  Dunn,  (Oreg.  1908), 
97  Pac.  811. 

Act  amending  void  act.— An  act 
which  confers  power  upon  a  town  to 
license  the  sale  of  intoxicating  liq- 
quors  and  which  is  an  amendment  of 
a  void  act,  is  also  void.  Copeland  v. 
Town  of  Sheridan,  152  Ind.  107,  51 
N.   E.   474. 

"Where  the  legislature  speci- 
fies different  sums  which  a  mu- 
nicipality may  charge  for  a  license 
and  provides  for  an  election  to  de- 
termine  which  sum  shall  be  charged 
the  amount  fixed  upon  is  a  sum  "re- 
quired by  the  general  law"  of  the 
State.  State  ex  rel.  Faber  v.  Hinkel, 
131  Wis.   103,  HI  X.  W.  217. 

In  California  the  county 
hoard  of  supervisors  is  held  to 
have    power    to    enact    an    ordinance 


prohibiting  the  granting  of  licenses 
for  the  sale  of  liquors  in  all  precincts 
within  the  county  except  upon  cer- 
tain prescribed  conditions.  Denton 
v.  Vann  (Cal.  App.  1908),  97  Pac. 
G75,  holding  an  ordinance  valid  which 
required  the  applicant,  as  a  condition 
precedent,  to  present  to  the  board  of 
supervisors,  with  its  bond  and  appli- 
cation, evidence  to  the  effect  that  a 
majority  of  the  electors  at  the  last 
general  election  favored  the  granting 
of  licenses  in  the  election  precinct 
where  he  proposes  to  establish  his 
business. 

In  Kansas  it  has  been  decided 
that  the  power  to  authorize,  regulate 
or  prohibit  the  sale  of  intoxicating 
liquors  has  been  withheld  from  mu- 
nicipal corporations.  State  v.  City  of 
Topeka,  31  Kan.  452,  2  Pac.  593. 

Council  does  not  act  as  a  court 
where  a  city  council  is  given  power 
to  grant  a  license  it  does  not  in  ex- 
ercising such  power  act  as  a  court, 
even  though  such  act  may  be  of  a 
judicial  nature,  in  the  sense  that  it 
involves  the  exercise  of  judgment  or 
discretion.  State  v.  Columbia,  17  S. 
C.  80. 

2.  Van  Hook  v.  City  of  Selma,  70 
Ala.  361,  45  Am.  Rep.  85.  Per  Somer- 
ville,  J.,  citing  Ex  parte  City  Council, 
in  re  Knox,  04  Ala.  403;  Cooley  on 
Const.  Lim.  581. 

3.  Brown  v.  Commonwealth,  98  Ky. 
052,    34    S.    W7.    12;    Compare    Mur- 


e   205]  LICENSES— MUNICIPAL    POWEBS.  243 

§  205.  Nature  of  power  and  exercise  of. 

The  powt  r  granted  to  the  common  council  of  a  city  to  fix  the 
rate  of  license  for  the  privilege  of  transacting  business,  is  a  branch 
of  the  taxing  power  which  is  not  affected  by  the  constitutional 
requirement  that  taxes  shall  be  uniform,  as  though  the  authority 
to  fix  the  rate  of  license  is  a  branch  of  the  taxing  power,  it  is  not 
taxation  pure  and  simple."4  And  the  provision  in  a  city  charter 
granting  to  the  common  council  the  right  not  only  to  regulate  and 
prohibit  the  sale  of  spirituous  liquors,  but  also  to  fix  the  amount 
of  assessment  to  be  paid  for  a  license,  and  directing  that  it  shall 
bo  paid  into  the  city  treasury  for  the  use  of  the  city  is  held  to 
confer  the  taxing  power  for  revenue  purposes.5  Where  granted 
for  police  purposes  however  such  power  must  be  exercised  as  a 
means  of  regulation  only  and  not  as  a  source  of  revenue.  This 
however  is  held  not  to  confine  the  amount  exacted  to  the  expense 
of  issuing  the  license  but  to  allow  the  charging  of  a  reasonable 
compensation  for  the  additional  expense  of  municipal  supervision 
over  the  particular  business  or  avocation  at  the  place  where  it  is 
licensed.6     Whether  in  a  given  case  the  main  purpose  of  an  ordi- 

dock's   Petition,   149  Pa.  St.   341,  24  "•  Flanagan  v.  Plainfield,  44  X.  J. 

.\tl.  222.  L.  118.     The  court  said:   "This  legis- 

4.  Ex    parte    Hurl,    49    Cal.    557;  lat ion  shows  a  clear  intent  to  put  the 

See  also  Mayor  v.  Beasly,  1   Humph.  sale  of  liquor  under  the  absolute  con- 

(Tenn.)    232,  holding  that  municipal  trol   of  the  city   council,   and  to  per- 

corporations    may    tax    privileges    in  mit  the  licensing  power  to  be  used  as 

what  proportion  they  choose  provided  a  source  of  revenue  to  the  city."    Per 

the  inequality  is  not  such  as  to  make  Van  Syckel,  J. 

it   oppressive  on  a   particular  class  of  Power    conferred    upon    a    city 

the  community.  to     license     privileges,     business 

A  municipal  corporation  may  *  *  *  and  the  amount  of  such  license 
impose  a  privilege  tax  where  it  is  taxes  shall  be  fixed  by  city  ordinance, 
the  same  on  all  persons  pursuing  the  which  amounts  of  such  taxes  shall 
same  profession  or  occupation  and  not  be  dependent  upon  the  general 
does  not  exceed  the  amount  author-  revenue  law  is  held  to  be  a  power  to 
ized  by  statute  and  such  a  tax  does  impose  license  taxes  for  revenue  pur- 
nut  violate  a  constitutional  provision  poses.  Lachman  v.  yValker.  52  Fla, 
that  "  taxation  shall  be  equal  and  uni-  297,  42  So.  461. 

form."     Holberg  v.  Macon,   55  Miss.  <!-  Van  Hook  v.  City  of  Selma,  70 

112.  Ala.  361,  45  Am.  R<  ;     B5. 


244 


LICENSES— MUNICIPAL  POWERS. 


[§  206 


nance  imposing  a  liquor  license  is  to  obtain  revenue  or  that  the 
ordinance  shall  operate  as  a  restraint  upon  the  traffic  in  liquor,  is 
a  question,  the  solution  of  which  depends,  where  either  hypothesis 
is  admissible  under  the  law,  upon  the  surrounding  circumstances.7 

§  206.  Exercise  of  power  continued. 

Where  the  legislature  confers  power  upon  a  city  to  license, 
regulate  and  prohibit  the  sale  of  intoxicating  liquor,  it  is  a  mat- 
ter purely  discretionary  with  the  city  whether  or  not  it  will  wholly 
prohibit  such  sale,  or  license  and  regulate  it.8  And  power  given 
to  a  city  to  license  the  liquor  traffic  implies  the  power  to  pro- 


7.  Sheriff  v.  Daiglc,  107  La.  510, 
32  So.  94. 

8.  Malkan  v.  City  of  Chicago,  217 
111.  471,  75  N.  E.  54S,  2  L.  R.  A.  (N. 
S.)  488n.  See  Portland  v.  Schmidt. 
13  Oreg.  17,  6  Pac.  221. 

Confirming  issuance  of  li- 
censes to  hotels.— In  California  it 
has  been  decided  that  an  ordinance 
prohibiting  the  sale  of  intoxicating 
liquors  in  the  city  by  any  person  ex- 
cept that  the  council  may  under  cer- 
tain conditions  issue  permits  to 
keepers  of  hotels  to  sell  vinous  and 
malt  liquors  in  the  dining-room 
thereof  as  a  part  of  the  regular  meal 
is  a  valid  exercise  ot  the  police  power. 
In  re  Kidd,  5  Cal.  App.  159,  89  Pac. 
987,  holding  also  that  the  operation 
of  the  exception  applying  alike  to  all 
of  the  class  so  excepted,  the  peti- 
tioner, not  being  of  that  class,  and 
in  no  wise  affected  by  its  operation 
upon  such  class,  has  no  cause  of  com- 
plaint. 

Sales  by  social  clubs.— Under 
power  conferred  upon  a  city  to  im- 
pose a.  license  tax  on  any  business  a 
city  may  treat  the  sale  of  liquors  by 
a  social  club  to  its  members  as  a 
business   and   impose   a   tax   thereon. 


Cuzner  v.  California  Club  (Cal.  S.  C. 
1909),  100  Pac.  80S. 

An  order  of  the  selectmen  of  a 
town  to  the  sheriff  directing  him  to 
close  all  saloons  at  a  certain  hour,  al- 
though it  contain  an  intimation  of  an 
intent  to  prosecute  offenders  against 
the  license  law  in  certain  contin- 
gencies, does  not  have  the  effect  of  a 
license  to  sell  at  those  hours  which 
are  not  mentioned  in  the  order.  Com- 
monwealth v.  Matthews,  129  Mass. 
485. 

Where  ordinance  held  invalid. 
—Power  conferred  upon  a  city  to  exact 
a  license  fee  may  be  exercised  when- 
ever the  city  authorities  see  fit  and 
the  fact  that  they  pass  an  ordinance 
prescribing  the  fee  for  the  following 
year  which  ordinance  is  held  invalid 
in  such  year,  is  held  not  to  prevent 
the  passage  of  an  ordinance  impos- 
ing fees  for  the  balance  of  such  year. 
Mayor  v.  Moss  Hotel  Co.,  113  La. 
1022,   37   So.   913. 

Near  beer. — A  city  under  power 
to  "levy  and  collect  a  license"  may 
require  a  license  for  the  sale  of 
near  beer.  Cassidy  v.  Mayor  of  City 
i  f  Macon  (Ga.  S.  C.  1909),  G6  S.  E. 
941. 


§   207]  LICENSES— MUNICIPAL   POWEBS.  245 

hibit  the  carrying  on  of  such  business  without  obtaining  a  lie*  - 
And  where  a  city  is  not  required  by  its  charter  or  the  general  laws 
of  the  state  to  levy  its  license  taxes  by  an  annual  ordinance  it 
may  enact  a  general  ordinance  of  this  character  to  remain  in 
force  until  repealed  or  amended  in  some  manner  provided  by 
law.10  Again  under  power  given  to  a  city  to  license,  regulate  or 
restrain  the  sale  of  spirituous,  vinous  or  malt  liquors  it  may  by 
ordinance  segregate  lager  beer  from  the  other  liquors  and  require 
a  separate  license  for  selling  beer  by  the  wholesale.11  And  an 
ordinance  passed  by  a  city  under  its  power  to  license,  regulate  or 
prohibit  the  intoxicating  liquor  traffic,  which  imposes  a  license 
fee  of  a  smaller  amount  upon  the  wholesale  dealer  in  liquors  where 
the  liquors  are  sold  in  excess  of  a  certain  quantity  and  not  to  be 
drank  upon  the  premises  that  it  does  upon  the  retail  dealer  by 
whom  liquor  in  any  quantity  may  be  sold  is  not  invalid  on  the 
ground  that  it  unjustly  discriminates.12 

§  207.  Power  to  prescribe  penalty. 

Power  to  license  places  for  sale  of  liquors  implies  the  authority 
to  forbid  and  punish  the  sale  of  such  liquors  without  a  license  for 
without  it  the  power  to  license  would  be  nugatory.13     Thus  it  is 

*>•  Portland   v.    Schmidt,    13    Oreg.  11.  Gambril]  v.  Endrich  Bros.,  143 

17,  6  Pac.  221;   See  also  Hershoff  v.  Ala.  506,  39  So.  207. 

Beverly,  45  X.  J.  L.  288.  12.  Strauss    v.    City   of   Galesburg, 

10.  Canova    v.    Williams,    41    Fla.  203  111.   234,   67   X.   E.   836,  wherein 

509,  27   So.  30.  the   court   said:    "Its   provisions    are 

Ordinance    imposing    tax    con-  specific,    clear,    equal    and    alike    ap- 

strned. — An  ordinance  providing  for  plicable  and  open  to  all  poisons  who 

the  payment  of  a  tax  by  one  who  sells  want   to    engage    in    either    business, 

or    gives    away    spirituous,    malt,    or  and  except   no  one  from  its  operation 

fermented  or  spirituous  liquors  in  any  and   confine  the  business  of  such   to 

quantity   whatever   is  not   to  be   con-  the  same  certain  or  specific  territory 

strued    as    imposing    the    tax    for    a  and  the  sales  of  each  to  specific  places 

single  act  but  for  continuing  acts  in  of  business."     Per  Mr.  Justice  Kicks, 

connection  with  and  as  a  part  of  the  13.  State  v.  Gill,  89  Minn.  502,  95 

business.      San    Luis    Obispo    Co.    v.  X.   W.   449;    City  of  Warrensburg  v. 

Greenberg,  120  Cal.  300,  52  Pac.  707;  McHugh,  122  Mo.  649,  27  S.  YV.  523; 

See   also    Ex    parte   Seube,   115    Cal.  Hoboken    v.    Goodman,    08    X.    J.    L. 

629,  47  Pac.  59G.  217.  51  Atl.  1092j  Stokes  v.  Schlach- 


240  LICENSES— MUNICIPAL  POWERS.  [§   208 

said  in  an  early  case  in  Illinois  that  the  authority  to  grant  licenses 
to  persons  to  sell  liquors  would  be  useless  without  the  power  to 
also  restrain  them  from  selling  without  a  license  as  without  such 
restraint  the  person  to  whom  a  license  was  granted  would  not  by 
its  issuance  obtain  any  advantage  over  one  selling  without  a 
license.14  So  the  power  to  license  places  for  the  sale  of  fermented 
liquors,  granted  to  a  city  where  such  places  were  unrestrained  by 
general  law,  coupled  with  the  general  power  to  pass  ordinances 
for  promoting  the  peace,  good  order,  and  prosperity  of  the  city, 
justifies  an  ordinance  which  forbids  any  sale  of  such  liquors 
without  a  license  and  prescribes  a  penalty  therefor.15  And  where 
authority  is  given  to  a  town  to  license,  regulate  and  restrain  the 
sale  of  intoxicating  liquors  it  has  been  decided  that  an  ordinance 
making  it  an  offense  to  sell  without  a  license  from  the  town  is 
valid  and  does  not  conflict  with  a  statute  providing  that  whatever 
is  made  a  public  offense  shall  not  be  made  punishable  by  an  ordi- 
nance, though  the  state  also  makes  it  an  offense  to  sell  without  a 
license  from  the  state.16 

§  208.  Failure  or  refusal  of  city  to  license. 

The  fact  that  a  city  is  authorized  to  pass  an  ordinance  in  rela- 
tion to  licensing  the  sale  of  spirituous  liquors  does  not  operate  as 
a  repeal  of  the  general  law,  and  if  they  fail  or  refuse  to  grant  a 
license  the  general  law  is  violated  by  a  sale  in  the  city  limits.17 
And  where  exclusive  jurisdiction  is  conferred  upon  the  authorities 
of  incorporated  towns  to  grant  licenses  within  their  incorporated 


ter,   66   N.    J.    L.    247,   49   Atl.    556;  90  Ind.  258,  wherein  it  was  declared 

Hershoff  v.  Beverly,  45  N.  J.  L.  288 ;  that  as  the  ordinance  made  it  penal 

Meyer  v.  Treasurer  of  Bridgeton,   37  only   where  the  sale  was  without   a 

N.  J.  L.  160;  Trustees  of  Clintonville  license  from  the  town  it  did  not  con- 

v.  Keeting,  4  Den.    (N.  Y.)    341.  flict  with  the  penal  law  of  the  state 

14.  Sullivan  v.  People,  15  111.  233.  which  required  that  to  constitute  an 

15.  Stokes,  Treasurer  v.  Schlachter,  offense  against  the  state  the  sale  must 
66  N.  J.  L.  247,  49  Atl.  556.  be  without  a  license  from  the  state. 

16.  Clevenger  v.  Town  of  Rushville,  17-  Gardner  v.  People,  20  111.  430. 


§  209]  LICENSES— MUNICIPAL   POWEKS.  247 

limits,  the  fact  that  the  town  may  Bee  prop<r  not  to  grant  a  license 
confers  no  authority  over  county  officers  to  act  in  the  matter.18 

§  209.  Grants  strictly  construed — Power  must  be  clearly  given. 
It  is  a  general  rule  that  the  powers  which  a  municipal  corpo- 
ration may  exercise  are  either  those  which  arc  expressly  conferred 
or  are  necessarily  implied.19  Thus  in  order  that  a  city  may  im- 
pose a  license  fee  or  tax  upon  the  liquor  traffic  the  power  must, 
it  is  decided,  be  clearly  given  to  it.20  But  while  grants  to  munici- 
palities resulting  in  public  burdens  are  to  be  strictly  construed, 
the  construction  must  nevertheless  be  sensible  and  based  upon  the 
entire  context.21  And  the  doctrine  as  to  strict  construction  and 
that  the  power  must  be  clearly  given  is  not,  to  be  construed  as 
meaning  that  it  is  essential  to  use  the  words  license,  license  fee 
or  tax  in  order  to  delegate  the  power  to  license  but  the  authorities 
generally  hold  that  a  municipality  may  exercise  the  power  to 
license  under  a  grant  of  authority  to  "  tax  and  regulate,"  22  to 
"  tax  "  or  "  restrain,"  23  "  restrain,  prohibit  and  suppress,"  24 
"  restrain  and  prohibit  "  25  or  to  "  prohibit."  26  And  it  is  said 
that  the  grant  of  authority  to  a  municipality  to  regulate  the  sale 
of  intoxicating  liquors  is  generally  construed  as  conferring  as  an 

is.  Village   of   Coulterville   v.   Gil-  censes    to    liquor    dealers    subject    to 

ten,    72    111.    599.      See    also   Phillips  forfeiture.       City     of     Shreveport     v. 

v.  City  of  Teeumseh,  5  Neb.  312.  Draiss   &    Co.,    Ill    La.    511,    35    So. 

1».  Galindo  v.  Walter    (Cal.  C.  A.  727. 

1908),  9G  Pac.  505;  Ex  parte  Simms,  21.  Lachman    v.    Walker,    52    Fla, 

40  Fla.  432,  25  So.  280;   See  §§   135  297,  42  So.  401. 

and    136   herein.  22.  state  v.  City  Council,  7   Wyo. 

20.  Mobile  v.  Richards  &   Sons,  98  417,   52   Pac.   075.   40   L.   R.   A.   710: 

Ala.   594,   12   So.  703:    Southern   Ex-  But  see  Burlington  v.  Bumgardner,  42 

press   Co.   v.   Rose   Co.,    124   Ca.    581,  Iowa  673. 

53  S.  E.  185;  Columbia  Club  v.  Mc-  ~t.  Mt.  Carmel  v.  Wabash  Co..  50 

Master,  35  S.  E.   1.  14  S.  E.  290,  28  111.   00. 

Am.  St.  Rep.  826.  24.  Emporia    v.    Volmer,    12    Kan. 

In  a   recent   case  in  Louisiana   it   is  622. 

decided  that  where  no  power  is  dele-  26.  City  of   St.   Louis  v.   Smith.  2 

gated  to  a  municipal  corporation  au-  Mo.  113. 

thorizing  it  to  forbid  the  sale  of  in-  2«.  City  of  Keokuk  v.  Dressell,  47 

toxicating  liquors  it  cannot  issue  li-  [owa  597. 


24S  LICENSES— MUNICIPAL   POWERS.  [§   210 

incidental  power,  the  authority  to  exact  a  license.27  So  in  Cali- 
fornia it  is  declared  in  a  recent  case  that  where  power  is  conferred 
upon  a  city  to  regulate  the  traffic  in  intoxicating  liquors  it  may 
enact  regulations  by  license  tax  or  otherwise  which  will  apply 
not  only  to  those  engaged  in  selling  liquor  to  the  public  but  also 
to  sales  which  are  made  by  a  social  club  to  such  persons  as  are 
members  thereof.28  But  where  there  is  a  general  law  in  the 
state  which  forbids  the  granting  of  licenses  to  sell  liquors,  the 
fact  that  a  subsequent  act  amending  a  city  charter  provides  as  to 
the  issuance  of  licenses  by  the  city,  such  provision  however  ex- 
pressly declaring  that  in  no  instance  shall  the  price  of  such  license 
be  fixed  at  a  less  sum  than  is  established  by  the  laws  of  the  state, 
does  not  authorize  the  city  to  grant  a  license,  as  the  power  con- 
ferred cannot  be  exercised,  it  being  upon  a  condition  which 
cannot  be  complied  with.29  And  power  given  to  the  common 
council  of  a  city  to  pass  ordinances  to  license  and  regulate  beer 
saloons,  confers  no  power  upon  the  common  council  to  authorize, 
either  by  a  license  or  permit,  the  sale  of  such  beverages  at  any 
other  place  than  a  regularly  licensed  beer  saloon.30 

§  210.  Must  not  exceed  power  granted. 

A  license  granted  by  a  municipality  without  authority  is  void 
and  of  no  effect.31     A  municipality  in  exercising  its  powers  to 

27.  Lutz  v.  City  of  Crawfordsville,  29.  Barringer  v.  Florence,  41  S.  C. 
109    Ind.    466,    10   N.    E.    411,    citing       501,    19   S.    E.   745. 

Smith  v.  City  of  Madison,  7  Ind.  80;  30.  Winans  v.  Bayonne,  44  N.  J.  L. 

City    of   Huntington   v.    Cheesbro,    57  114. 

Ind.    74;     City    of    Lawrenceburg    v.  31.  Collins   v.    State,    152   Ala.   90, 

Wuest,   10   Ind.   337;    State  v.   Clark,  44  So.  571;   Commonwealth  v.  Hayes, 

:.I   Mo.  17,  14  Am.  Rep.  471;  State  v.  149  Mass.  32,  20  N.  E.  456. 

De  Bar,  58  Mo.  395.  Where   incorporated   towns   are  ex- 

28.  Cuzner  v.  California  Club  (Cal.  pressly  excluded  by  statute  from  the 
8.  C.  1909),  100  Pac.  868,  holding  only  method  of  granting  the  required 
however  in  this  case  that  it  was  not  license  in  a  county  and  by  statute  it 
the  intent,  in  passing  the  ordinance,  is  made  a  penal  offense  to  deal  in 
to  have  it  apply  to  such  clubs  which  liquors  in  such  county  without  a 
were  organized  in  good  faith  for  social  license,  liquor  traffic  in  such  towns 
purposes.  is   thereby   prohibited   and  no   license 


§210]  LICENSES— MUNICIPAL  POWERS.  249 

license  the  liquor  traffic  should  comply  with  the  general  law  of 
the  state  as  to  the  requirements  of  the  ordinance  and  conditions 
imposed,32  since  a  city  cannot  license  or  impose  a  license  tax  on  the 
intoxicating  liquor  traffic  contrary  to  the  provision  of  the  con- 
stitution and  statutes  of  a  state.33  Thus  it  was  so  held  where  by 
statute  the  number  of  licenses  which  a  city  or  town  might  grant 
was  to  be  proportioned  to  its  population  and  any  number  in 
excess  of  the  provisions  of  the  act  were  to  be  void,  and  it  appeared 
that  after  a  town  had  issued  the  number  which  it  was  authorized 
to  issue,  another  license  was  granted  by  it.34  And  in  the  absence 
of  express  authority  conferred  upon  it  a  city  has  no  power  to 
take  a  bond  running  to  itself  and  conditioned  that  the  principal 
obligor  therein  will  "  comply  with  all  the  provisions  of  the  city 
ordinances  relating  to  the  licensing  of  the  sale  of  intoxicating 
liquors.35  So  when  a  city  is  empowered  by  a  general  provision 
to  raise  revenue  by  levying  and  collecting  a  license  tax  on  any 
occupation  or  business  within  its  limits  and  also  to  license  and 
regulate  the  sale  of  intoxicating  liquor  it  has  been  decided  that  it 
may  impose  an  occupation  tax  upon  liquor  dealers  in  addition  to 
the  amount  paid  for  license  to  sell  liquor  but  cannot  make  the  pay- 
ment of  such  tax  a  condition  precedent  to  the  issuing  of  licenses 
to  sell  liquor.36  And  where  the  qualifications  for  the  granting 
of  a  license  by  the  state  or  county  are  prescribed  by  the  general 
laws  of  the  state,  a  city  which  has  the  power  to  exact  a  license 
fee  cannot  impose  additional  qualifications  to  those  prescribed  by 


for  sales  therein  can  he  of  any  force.  nature  of  quo  warranto.     Followed  in 

Beckham    v.    Howard,    83    Ga.    80,    9  State  v.  City  of  Leavenworth.  36  Kan. 

S.  E.  784.  314,   13   Pac.  591. 

32.  People  v.  Mount,   180  111.  560,  84.  Commonwealth    v.    Hayes,    149 

58  N.  E.  360.  Mass.  32,  Jit  X.  E.  456. 

S3.  State    v.    City    of    Topeka,    30  85.  City   of   Minneapolis   v.    Olson, 

Kan.  053.  2  Vac.  587,  holding  that   if  70  Minn.   1,  7s  X.  W.  S77. 

it  attempts  to  assume  auch  unlawful  86.  State  ex   rel.   Sage  v.  Bennett, 

power  it  may  be  ousted  from  the  ex-  19  Neb.  191,  26  \V.  \V.  714. 
ercise  thereof  by   proceedings    in   the 


250  LICENSES— MUNICIPAL   POWEES.  [§211 

the  general  law.37  Again  it  has  been  decided  that  authority 
given  to  a  village  council  "  to  license  saloons,  taverns  and  eating 
houses  "  does  not  authorize  it  to  license  the  sale  of  liquors.38 

§  211.  Must  not  discriminate — Interstate  commerce. 

\Yhile  it  is  competent  for  the  legislature  to  delegate  to  the 
municipal  authorities  the  power  to  determine  the  fitness  of  an 
applicant  for  license  yet  the  power  must  be  exercised  in  a  manner 
governing  the  cases  of  all  applicants  alike  so  that  there  may  be 
no  discrimination.  And  an  ordinance  passed  in  the  exercise  of 
this  power  which  authorized  the  common  council  to  determine 
the  question  of  fitness  was  held  to  be  void  where  it  provided  no 
standard  of  fitness  or  unfitness,  no  rule  by  which  those  charged 
by  the  ordinance  with  making  the  determination  were  to  be 
guided  and  left  the  whole  matter  entirely  to  the  individual 
opinion  or  arbitrary  discretion  of  the  members  of  the  council.39 
So  a  city  ordinance  which  in  fixing  license  fees  discriminates 
between  dealers  where  products  are  manufactured  outside  the 
city,  and  those  whose  products  are  manufactured  within  the  city 
is  void  and  unconstitutional.40     And  where  an  ordinance  under 

37.  Territory  v.  Robertson,  19  Rose  Co.,  124  Ga.  581,  53  S.  E.  185. 
Okla.   149,  92   Pac.   144.  And  it  was  also  held  in  this  case 

38.  Village  of  Mount  Pleasant  v.  that  a  common  carrier  able  and  ac- 
Vansice,  43  Mich.  3C1,  5  N.  W.  378,  customed  to  transport  liquors  be- 
38  Am.  Rep.  193.  tween    cities    within    a    state    cannot 

39.  Ensley  v.  State  (Ind.  1909),  88  lawfully  refuse  to  accept  and  trans- 
N.  E.   02.  port    liquors    to    a    city    which    has 

40.  Jung  Brewing  Co.  v.  Frankfort,  adopted  an  ordinance  imposing  a  li- 
100  Ky.  409,  38  S.  W.  710.  cense  fee  upon  a  carrier  who  delivers 

A   municipal    corporation    has  or  causes  to  be  delivered  such  liquors 

no  power  to  prohibit  the  recep-  into   its   corporate    limits.      Southern 

tion   -within   its   limits   of   liquors  Express  Co.  v.  Rose  Co.,  124  Ga.  581, 

lawfully    purchased    elsewhere    or    to  53  S.  E.   185. 

provide  by  ordinance  that  it  shall  be  But    in    a    recent    case    in    Massa- 

unlawful  for  a  common  carrier  to  de-  chusetts    it    is    decided   that    statutes 

liver  or  cause  to  be  delivered  into  its  providing   that    no    person    or    corpo- 

corporate  limits  such  liquors  without  ration  except  a  railroad  or  street  rail- 

the  payment   of   a-  certain    sum   as   a  way    corporation    shall    transport    in- 

license  fee.     Southern  Express  Co.  v.  toxicating    liquors    into    or    in    cities 


§211]  LICENSES— MUNICIPAL   POWERS.  251 

which  a  druggist  paying  for  a  license  to  retail  in  less  than  a 
certain  quantity  permits  him  to  also  sell  in  quantities  in  eXC 
of  such  quantity  without  paying  extra  for  the  privilege  and 
without  any  restriction  as  to  the  place  of  sale  there  is  an  unjust 
discrimination,  the  same  privilege  not  being  obtainable  by  others 
at  any  price.41  But  an  ordinance  requiring  persons  selling  beer 
by  the  barrel  to  pay  a  license  fee  and  which  exacts  such  fee  with- 
out reference  to  the  question  where  the  beer  was  manufactured, 
whether  within  or  without  the  state,  creates  no  discrimination 
against  citizens  of  other  states  who  may  be  engaged  in  manu- 
facturing beer  and  does  not  violate  the  Fourteenth  Amendment.42 
And  the  requiring  by  ordinance  of  the  taking  out  of  a  license  and 
payment  of  tax  by  manufacturers  who  maintain  a  place  for  the 
sale  of  liquors  within  the  city  which  is  separate  from  their  manu- 
factory is  held  not  to  be  a  violation  of  the  Fourteenth  Amendment 
in  that  it  discriminates  in  permitting  manufacturers  to  sell  at  the 
manufactory,  nor  is  it  an  interference  with  interstate  commerce 
as  discriminating  against  a  citizen  of  another  state.43  Again  a 
city  ordinance  imposing  a  license  fee  upon  all  breweries,  dis- 
tilleries and  depots  of  same,  is  not  discriminating,  though  one 
section  defines  the  places  which  shall  be  considered  as  depots 
within  the  meaning  of  the  ordinance,  so  as  to  include  foreign 
breweries  shipping  beer  to  resident  agents  for  purposes  of  local 
delivery.44 

of   a    certain   class   within    the   state  Commonwealth    v.    People's    Express 

without  first  being  granted  a  permit,  Co.,  201   Mass.  564,  88  N.  E.  420. 

and  also   that   no  person   or   corpora-  41.  Monmouth    v.    Popel,     183    111. 

tion  not  regularly  and   lawfully  con-  G34,  56  N.  E.  348. 

ducting    a    general    express    business  42.  Phillips    v.    Mobile,    208    TJ.    S. 

except     a     railroad     corporation     or  472.  28   Sup.   Ct.   370  """-/   Mobile  v. 

street  railway  corporation  authorized  Phillips,   1  -Hi  Ala.   158,  40  So.  826. 

to  carry  express  or  freight  shall  re-  48.  Dulutli    Brewing   &    M.    Co.    v. 

ceive  for  transportation  or  transport  City   of    Superior,    123    Fed.    353,    59 

such    liquors    for     delivery     in     such  C.    0.    A.    481.      See    also    Schmidt    v. 

cities  are  not  unconstitutional  as  be-  Indianapolis,   168   Ind.  631,  80  N.  E. 

ing    an    interference    with    interstate  632. 

commerce  so  far  as  their  operation  is  I  !.   Schmidl  v.  City  of  Indianapolis, 

confined  to  intra-state  transportation.  168  [nd.  631,  SO  X.  E.  632. 


252  LICENSES— MUNICIPAL   POWEES.  [§§212,213 

§  212.  Power  under  general  welfare  clause  in  charter. 

A  city  has  no  right  to  license  the  liquor  traffic  by  virtue  of  the 
general  welfare  clause  in  its  charter.  Such  power  must  be 
clearly  conferred  upon  it  either  by  charter  provisions  to  that 
effect  or  by  virtue  of  the  statutes  of  the  state.45  The  power  to 
grant  licenses  cannot  be  claimed  by  a  town  by  virtue  alone  of  a 
power  of  general  legislation  for  itself  as  this  latter  power  must 
be  exercised  in  subordination  to  the  constitution  and  general  laws 
of  the  state,  and  the  courts  will  not  infer  that  the  legislature 
intends  to  authorize  any  local  departure  from  a  general  policy  of 
the  state  unless  the  local  exception  is  expressed  in  specific  terms 
or  arises  by  necessary  indication.46 

§  213.  Power  must  be  exercised  by  ordinance. 

The  mere  power  granted  to  a  municipal  corporation  to  license, 
regulate  and  prohibit  the  liquor  traffic  is  held  to  be  a  dormant 
one  which  affords  no  authority  to  issue  licenses  until  called  into 
life  and  put  into  operation  by  appropriate  legislation  by  the 
municipal  authorities  which  should  be  by  means  of  a  general 
ordinance,  authorizing  the  issuance  of  licenses,  specifying  who 
shall  issue  them,  the  length  of  time  to  run,  the  amount  to  be 
paid  therefor  and  the  time  and  manner  of  payment.47     So  it  is 

45.  Georgia. — Walker    v.    McNelly,  New    Hampshire. — State   v.    Fergu- 

121    Ga.    114,   48    S.   E.   718;    Mathis  son,  33  N.  H.  424. 

v.  State,  93  Ga.  38,  18  S.  E.  996.  New  Jersey.— Schlachter  v.  Stokes, 

Indiana.— Walker      v.      Town      of  63  N.  J.  L.   138,  43  Atl.  571. 

Columbia   City,  01   Ind.  24;   Deutseh-  But  see  Ex  parte  McNally,  73  Cal. 

man  v.  Town  'of  Charleston,  40  Ind.  ^>      ^     P*c.      368  5      Campbell     v. 

44r,  Thomasville     (Ga.    1909),    64    S.    E. 

Iowa. — City  of  Burlington  v.  Kellar,  "  .     . 

4G.  Sanders   v.    Town    Commission- 
18  Iowa   59.  „7n 

ers,   30  Ga.  679. 
Kentucky.— Commonwealth  v.  Voor-  47    Peop]e  y   village  of  Qrotty,  93 

hies,  12  B.  Mon.  361.  T]]    ]S0      See  also  Rosenberg  v.  Rohrer 

Massachusetts. — Commonwealth  v.        (Neb.   1909),   120  N.  W.   159;   Payne 

Locke,  114  Mass.  288.  v.  Ryan,  79  Nob.  414,  112  N.  W.  598; 

Mississippi. — Leonard    v.     City  of      State   v.    Andrews,    11    Neb.    523,    10 

Canton,    35   Miss.    189.  N.  W.  410. 


§    214]  LICENSES— MUNICIPAL    POWERS.  253 

said  in  a  recent  case:  "  The  power  to  license,  including  the  po 
to  fix  the  amount  of  the  license  fee,  is  a  power  which  must  be 
called    into   exercise    by    appropriate    municipal    legislation.      A 
municipality  can  only  legislate  through  the  passage  of  ordinances, 

and  not  by  the  passage  of  mere  resolutions.  Ii  is  well  settled 
that  acts  of  legislation  by  a  municipal  corporation,  which  pre- 
scribe a  permanent  rule  of  conduct  or  government,  and  which 
are  to  have  a  continuous  force  and  effect,  musl  be  established  by 
ordinance."  4S  And  it  has  been  decided  that  where  the  powers  to 
license  and  also  to  fix  the  amount  of  a  license  fee  are  coupled 
when  the  power  to  license  is  exercised  by  the  passage  of  an  ordi- 
nance the  determination  of  the  amount  to  be  paid  for  the  license 
should  also  be  embodied  in  the  ordinance.49 

§  214.  Right  to  impose  fee  or  tax  generally. 

The  police  power  is  frequently  exercised  where  it  results  in 
raising  revenue  and  the  fact  that  an  ordinance  imposing  a  license 
tax  also  produces  a  revenue  to  the  city  docs  not  render  it  any 
the  less  a  police  regulation.50     And  the  fact  that  a  license  tax 


48.  People  v.  Mount,   186  111.   560,  scribing    the    amount    whether    such 

571,  58  N.   E.   3G0.     Per  Mr.  Justice  ordinance    is    to    be    regarded    as    an 

Ma-ruder,  citing  Chicago  &  Northern  occupation     tax,     one     for      revenue 

P.  Pi.  Co.  v.  Chicago,  174  111.  439,  51  purely,  or  whether  as  a  police  regu- 

N.    E.    59(i :    Village   of    Altamont    v.  lation,  incidentally  affording  revenue. 

Baltimore  &  Ohio  S.  R.  Co.,  184  111.  Cofer  v.  Commonwealth,  27  Ky.  Law 

47,  56  N.  E.  340.  Rep.  934.  s?    s.   W.   264.     See   Cofer 

■«!►.  People    v.    Mount,    186   111.    58  v.  City  of  Elizabethtown,  30  Ky.  Law 

N.    E.  360.  Rep.  706,  99  S.  W.  I    B. 

•">«►•   Phillips  \.   City  of  Mobile,  208  Presumption   as   to  validity  of 

U.    S.    472.    28    Sup.    Ct.    370.    aff'g  ordinance.— An  ordinance  which  im- 

Mobile  v.   Phillips,   146   Ala.    158,   40  poses  a  license  tax  on  the  traffic  in  re 

So.  82(1.  tail  liquors,  which  tax  i-  no!  in  e 

Where  the  legislature  has  in  (loar  of  the  amount   which  by  charter  the 

terms  granted  to  a  city  the  power  to  municipality  is  authorized  to  ii' 

impose  a  tax  for  the  carrying  on  of  in    the    exercise    of    power    conferred 

the  liquor  traffic  and  the  amount   is  upon   it   t<>   license  and   regulate  the 

left  to  the  discretion  of  the  city  coun-  sale  or  gifl  of  such  liquors,  is  in  the 

cil  it  is  immaterial  upon  the  question  absence   of   evidence   establishing 

of  the  validity  of  an  ordinance  pre-  invalidity     presumed     to     be     valid. 


L>54  LICENSES— MUNICIPAL  TOWERS.  [§   214 

imposed  upon  dealers  in  intoxicating  liquors  is  higher  than  the 
tax  upon  dealers  in  other  commodities,  does  not  render  the  tax 
invalid  because  discriminative.51  A  tax  may  also  be  valid  which 
is  graduated  on  the  basis  of  the  amount  of  the  sales.52  And  an 
ordiance  which  provides  that  the  license  fee  shall  be  higher  in  a 
place  where  intoxicating  liquors  are  sold  and  in  which  females 
are  employed  than  it  is  where  they  are  not  employed  has  been 
held  to  be  valid  and  constitutional.53  But  though  a  municipal 
corporation  is  empowered  to  exact  a  license  fee  the  authorities 
cannot  by  ordinance  bind  their  successors  in  office  by  providing 
that  no  license  shall  be  issued  for  less  than  a  certain  sum  per 
year  until  the  expiration  of  those  for  which  that  sum  has  been 
paid.54  And  where  the  city  council  fixes  the  license  for  retailing 
liquors  at  a  sum  within  its  discretion  under  the  statute,  the  same 
council,  at  a  subsequent  meeting,  or  its  successor,  may,  within 
the  limit  allowed  by  the  statute,  raise  or  lower  the  tax  so  as  to 
bind  persons  applying  for  such  license  after  the  change  has  been 
made.55  Again  it  is  decided  that  one  who  has  paid  money  to  a 
municipal  corporation  for  a  license  which  it  has  assumed  to 
grant  in  excess  of  its  power  may  recover  from  the  corporation 
the  sum  so  paid.56 


Johnson  v.  Town  of  Fayette,  148  Ala.  that  "  no  person  shall  on  account  of 

497.  42  So.  021.  sex,     be     disqualified     from     entering 

License    fee    not    a    tax.— A    li-  upon    or    pursuing    any    lawful    busi- 

eense  fee  imposed  by  a  city  under  its  ness,  vocation  or  profession." 

power  to  "  tax,  license  and  regulate "  54.  Williams    v.    City    Council,    68 

is    not    a    tax    in    the    constitutional  Ga.   816. 

of    the    term.      United    States  55-  City   of  Mt.    Sterling   v.   King, 

Di   tilling  Co.  v.  Chicago,  112  111.  19.  31    Ky.    Law    Rep.    919,    104    S.    W. 

51.  Lachman    v.    Walker,    52    Fla.  322. 

297     1-    So.   461.  56#  Leonard  v.  City  of  Canton,   35 

52.  Allentown  v.  Gross,  132  Pa.  St.  Miss.    189;    See   also   Mt.   Sterling  v. 
319,    19   Ail.  269.  King,    31    Ky.    Law    Rep.    919,    104 

53.  Ex  parte  Felchlin,  96  Cal.  360,  S.  W.   322. 

31    Pac.    224,    31    Am.    St.    Rep.    223,  See  §§   199,  200  herein  as  to  right 

holding   that    the    ordinance    did   not  to  recover  fee. 
violate    the    constitutional    provision 


§§  215,216]  LICENSES     MUNICIPAL   POWERS.  255 

§  215.  Discretion  as  to  amount  of  fee. 

The  legislature  may  confer  a  lawful  discretion  upon  boards 
and  officers  appointed  to  grant  liquor  licenses.67  And  where  a 
municipality  is  vested  with  the  power  to  license,  tax,  and  regulate 
the  liquor  traffic  the  fee  which  it  may  impose  is  to  a  certain 
extent  though  not  absolutely  discretionary  with  the  city  au- 
thorities.58 And  a  city  may  prescribe  a  higher  rate  for  a  lie. 
in  the  business  or  thickly  populated  part  of  the  city  than  it  does 
in  a  suburban  section  which  is  not  so  thickly  populated  and  the 
business  carried  on  is  more  that  of  a  tavern  or  wayside  inn.  Such 
an  ordinance  is  not  discriminatory,  the  difference  being  justified 
by  the  difference  between  the  quantum  of  sales.59  But  under 
power  to  license,  regulate  and  restrain  an  exorbitant  tax  or 
license  fee  cannot  be  required  of  one  whose  place  of  business  is 
remote  from  the  settled  portion  of  the  city.60 

§  216.  Fee  must  not  be  prohibitory. 

While  the  power  to  license  is  said  to  imply  the  power  to  with- 
hold a  license  and  confers  a  certain  discretion  as  to  the  amount 
of  the  fee,  yet  it  does  not  confer  the  right  to  prohibit  or  to  pass 
an   ordinance  requiring  the   payment   of   a   license   fee   which  is 

•"7.  State  v.   City   Council,   7   Wyo.  60.  Salt   Lake    City    v.    Wagner,    2 

H7.  52  Pac.  975,  40  L.  R.  A.  710.  Utah  400. 

58.  City  of  Indianapolis  v.  Bieler,  Power  conferred  upon  a  munici- 
138  Ind.  30,  3G  N.  E.  857,  so  holding  pality  to  pa<s  any  ordinance  nol  in 
where  such  power  was  conferred  in  conflict  with  the  federal  or  state  (en- 
respect  t<>  breweries  and  distilleries.  stitutions  or  statutes  and  to  restrain 
See  also  Dennehy  v.  Chicago,  120  111.  liquor  shops  and  impose  license 
027,    12   N.   E.   227.  taxes    confers    no    authority    to    pass 

59.  County  of  Amador  v.  Kennedy,  an  ordinance  fixing  the  charge  for  a 
70  Cal.  458,  11  Pa.-.  757;  City  of  liquor  license  outside  a  restricted 
East  St.  Louis  v.  Wehrung,  -US  111.  area  at  fifteen  hundred  dollars  ad- 
392,  wherein  it  is  declared  thai  Buch  ditional  to  that  imposed  in  such  area. 
an  ordinance  would  be  founded  on  the  it  l>ciiiLr  admitted  a  No  that  the  cost 
self-evident  fact  that  a  business  may  of  policing  is  the  same  and  that  both 
be  conducted  with  much  more  profit  districts  contain  residence  and  busi- 
in  some  streets  of  a  town  than  in  ness  sections.  Howland  v.  State  ex 
others  and  the  privilege  therefore  rel.  Zirkleback.  50  Fla.  422,  47  So. 
more  valuable.  963. 


256  LICENSES— MUNICIPAL  POWERS.  [§   217 

prohibitory.  The  power  to  prohibit  must  be  expressly  conferred 
and  it  cannot  be  exercised  under  the  power  to  license,  tax  and 
regulate  by  imposing  a  fee  which  in  effect  is  a  prohibition  of  the 
traffic.61  So  power  conferred  upon  the  voters  of  a  municipality 
to  determine  by  popular  vote  the  amount  which  may  be  charged 
for  a  license  fee  does  not  authorize  them  to  fix  a  fee  by  v^ote  which 
is  prohibitory.02  But  it  cannot  ordinarily  be  assumed  judicially 
that  a  sum  required  by  a  city  as  a  license  fee  is  a  virtual  prohibi- 
tion of  the  sale  of  liquors.63  And  the  amount  of  a  liquor  tax 
will  not  be  regarded  as  prohibitory  so  as  to  render  the  ordinance 
fixing  it  invalid  where  it  is  shown  that  under  a  slightly  less  tax 
other  dealers  in  the  same  town  made  a  net  profit  on  the  business 
during  the  preceding  year.64 

§  217.  Amount  of  fee  as  affected  by  state  fee. 

Power  to  a  city  or  other  local  authorities  to  license  the  traffic 
does  not  authorize  the  imposing  of  a  larger  license  fee  than  is 
fixed  by  the  laws  of  the  state  where  such  laws  contain  a  limita- 
tion to  this  effect.65     And  where  the  act  creating  a  town  limits 

61.  Alabama— Kx    parte     Burnett,  Compare    Intendant    of    Marion    v. 

30    Ala.    461 ;    followed    in    Craig    v.  Chandler,  G  Ala.  899,  under  power  to 

Burnett,  32  Ala.  728.     This  doctrine  license,   regulate   and   restrain, 

was  also  affirmed  in  Ex  parte  Sikes,  Under  power  to  a  municipality  to 

102  Ala.  173,  15  So.  522,  24  L.  R.  A.  license,    regulate    tax    or    suppress    a 

774^  license  fee  of  five  hundred  dollars  was 

California.— Merced       County       v.  held    proper.      Wallace    v.    Cubanola, 

Fleming,  111  Cal.  46,  43  Pac.  392.  70  Ark.  395,  68  S.  W.  485. 

Indiana.— Sweet     v.     Wabash,     41  62.  Berry  v.   Cramer,  58  N.  J.  L. 

In(l_    7.  278,  33  Atl.  201. 

Louisiana—  State    v.    Police    Jury,  63.  Ex  parte  Hurl,  40  Cal.  557. 

120  La.   L633  45  So.  47,  holding  a  five  Tacts    of    each    case    control.— 

thousand    dollar    fee    imposed    by   the  Whether    the    price    of    a    license    as 

police    jury    to    be    prohibitory.      See  fixed  by  a  municipality   is  so  exces- 

also    State    v.    Police    Jury,    116    La.  sive    as    to    be    prohibitory    must    be 

:]   g0    85.  determined  by  the  fads  and  circum- 

Missouri.— Ex     parte    Hinkle,     104  stances  of  each  case.     Ex  parte  Sikes, 

Mo.  App.  in  I.  7S  S.  W.  317.  102  Ala.   173,  15  So.  522,  24  L.  R.  A. 

Oregon.— Portland    v.    Schmidt,    13  774.     See  Merced  County  v.  Fleming, 

Oreg.   17,  6  Pac.  221.  Ill  Cal.  46,  43  Pac.  392. 


§   oj^g-j  LICENSES— MUNICIPAL   POWERS.  257 

its  power  to  the  exacting  of  a  license  fee  not  in  excess  of  that 
required  by  the  state,  the  subsequent  removal  of  a  constitutional 
restriction  to  the  same  effect  as  to  all  cities  ami  town.-  does  not 
of  itself  remove  the  limitation  upon  the  power  of  the  city  or  town 
in  the  act  creating  it.06 

§  218.  City  may  require  license  fee  although  state  also  does. 

A  city  may  exact  a  license  fee  where  power  is  given  it  to 
license,  regulate  and  restrain  the  liquor  traffic  even  though  the 
state  may  also  exact  one.67  And  the  delegation  of  power  to 
municipalities  to  license,   regulate  and  prohibit  the  sale  of  in- 


64.  Johnson  v.  Town  of  Fayette, 
148  Ala.  497,  42  So.  621. 

65.  State  v.  Chase,  33  La.  Ann. 
287.  See  also  Kniper  v.  City  of 
Louisville,  7  Bush  (Ky.),  599,  where 
the  charter  provided  the  limit  which 
could  be  charged.  Town  of  Paris  v. 
Graham,  33  Mo.  94. 

Compare  Intendant  of  Marion  v. 
Chandler,  6  Ala.  899,  holding  that 
under  authority  to  license,  regulate 
and  restrain  the  liquor  traffic  and  to 
restrain  and  prohibit  drunkenness  a 
municipality  may  exact  a  license  fee 
which  is  greatly  in  excess  of  that  re- 
quired by  the  state,  even  though  it 
may  be   in  effect  prohibitory. 

Where  the  sum  charged  by  the  laws 
of  a  state  for  a  license  to  sell  spiritu- 
ous, vinous  and  malt  liquors  was  one 
hundred  dollars  and  for  a  license  to 
sell  vinous  and  malt  liquors  was  fifty 
dollars  it  was  decided  that  a  town  au- 
thorized to  license  the  sale  of  vinous, 
malt  and  other  intoxicating  liquors 
and  to  charge  a  fee  not  to  exceed  thai 
required  by  the  statutes  of  the  state 
to  sell  or  retail  intoxicating  liquors 
had  a  right  to  issue  a  license  to  sell 
intoxicating  liquors  generally  and 
charge  a  license  fee  of  one  hundred 
dollars.     Copeland  v.  Town  of  Sheri- 


dan, 152  Ind.  107,  51  N.  E.  474. 

66.  Petitfils  &  Bro.  v.  Town  of 
Jeanerette,  52  La.  Ann.  1005,  27  So. 
358. 


67.  Intendant 
Chandler,    6    Ala. 


of       Marion        v. 
899 ;    followed    in 


Intendant  of  Greensboro  v.  Mullins, 
13  Ala.  341;  and  West  v.  Corporate 
Authorities  of  Greenville,  39  Ala.  69; 
See  Moore  v.  Indianapolis,  120  End. 
483,  22  N.  E.  424;  City  of  Frankfort 
v.  Aughe,  114  Ind.  77,  15  N.  E.  802; 
Drysdale  v.  Pradat,  45  Miss.  445. 

Where  a  person  has  obtained  and 
paid  for  a  license  to  sell  liquors 
within  a  county  it  has  been  decided 
that  a  city  council  cannot  by  an  ordi- 
nance passed  subsequent  to  the  issu- 
ance of  such  license  impose  and  col- 
lect an  additional  tax  from  such  li- 
censee during  the  term  of  his  license. 
Mayor  v.  Lumpkin,  5  C.a.  447. 

Licenses  to  sell  on  steamer.— A 
licensee  for  the  business  of  retailing 
liquors  owes  one  license  to  the  state 
and  one  to  the  local  authorities  of 
the  home  port  of  a  steamer  running 
on  navigable  waters  and  is  not 
obliged  to  pay  a  license  at  every  land- 
ing in  the  state  during  the  course  of 
the  voyage.  State  v.  Deunie.  51  La. 
Ann.  608,  25  So.  394. 


258 


LICENSES— MUNICIPAL  POWERS. 


[§  218 


toxicating  liquor  therein,  does  not  except  persons  holding  licenses 
or  permits  from  such  municipal  corporations  from  the  payment 
of  the  license  fee  required  by  the  state.68  But  where  towns  or 
cities  have  the  exclusive  privilege  of  granting  license  to  sell  in- 
toxicating liquors  and  of  prescribing  the  terms  on  which  they  may 
be  sold  within  their  corporate  limits,  it  is  decided  that  no  person 
need  have  any  other  license  than  the  ordinance  passed  in  the 
exercise  of  such  power  may  provide  and  that  if  a  person  brings 
himself  within  their  provisions  he  is  not  liable  to  indictment 
under  the   state  law   as  the   latter  is   suspended  thereby,69    and 


GS.  Parsons  v.  People,  32  Colo.  221, 
76  Pac.  666. 

See  State  v.  White,  115  La.  779, 
40  So.  44,  holding  that  the  fact  that 
a  city  ordinance  requires  a  permit  to 
enable  one  to  carry  on  the  business 
of  selling  intoxicating  liquors  and 
that  one  engaged  in  such  occupation 
has  violated  the  ordinance  by  not  ob- 
taining the  necessary  permit,  does 
not  exempt  him  from  the  general  li- 
cense laws  of  the  state  and  from  the 
payment  of  the  fee  required  by  state 
laws  as  the  state  does  not  concern 
itself  with  the  enforcement  of  munici- 
pal regulations. 

69.  Village  of  Coulterville  v. 
Gillen,  72  111.  599;  Bennett  v.  People, 
30  111.  389;  Commonwealth  v.  Luck, 
2  B.  Mon.  (Ky.)  296.  See  Licks  v. 
State,  42  Miss.  316;  But  see  State  v. 
Nolan,  37  Minn.  16,  3.3  N.  W.  36. 

Where  power  is  exclusively 
conferred  upon  the  municipal 
or  county  authorities  to  license 
tax  and  regulate  the  liquor  traffic 
within  the  corporate  limits,  it  is  de- 
cided that  a  license  from  the  au- 
thority having  such  power  is  all  that 
is  required.  Hetzer  v.  People,  4  Colo. 
45 :  Examine  People  v.  Raims,  20 
Colo.   489,   39   Pac.   341. 

State  licenses  must  be  granted. 


— A  statute  giving  to  the  council  of  a 
city  exclusive  power  to  grant  or  re- 
fuse license  to  sell  spirituous  liquors 
within  the  city,  regardless  of  the  ac- 
tion of  the  county  court,  and  the  pro- 
vision of  the  act  that  the  county 
court  shall  grant  state  license  after 
the  council  has  granted  such  license, 
is  mandatory  upon  the  county  court. 
Ward  &  Co.  v.  County  Court,  51 
W.   Va.   102,  41   S.   E.   154. 

So  where  by  statute  the  exclusive 
control  of  granting  licenses  was 
vested  in  the  town  authorities  by 
whom  a  license  was  issued  it  was  held 
that  the  licensee  was  not  required  to 
obtain  another  license  from  the  county 
court  but  should  tender  or  pay  to 
him  the  license  tax  due  the  state  and 
that  the  refusal  of  the  clerk  to  accept 
such  money  did  not  affect  the  right 
of  the  licensee  to  sell.  Koch  v.  Com- 
monwealth, 27  Ky.  Law  Rep.  122,  84 
S.  W.  533. 

A  statute  as  to  the  filing  of 
bonds  and  affidavits  by  persons 
engaged  in  such  traffic  will  not  be 
construed  as  applying  to  one  licensed 
by  a  city  having  sole  and  exclusive 
power  to  tax,  license  and  regulate. 
State  v.  Millard,  39  Mo.  App.  251. 

Where  a  statute  provided  among 
other  things  that  the  payment  of  a 


g   L>1!)|  LH  ENSES     MUNICIPAL    POWEES.  259 

especially  would  this  be  true  where  power  to  License  is  exclusively 

conferred   upon  the  city  council,  the  statute  also   providing  that 
a  person  so  licensed  need  obtain  no  other  license.70 

§  219.  Power  to  impose  conditions  and  make  regulations. 

Power  to  license,  tax,  regulate  and  restrain  the  liquor  traffic 
in  a  city  confers  the  right  to  provide  by  ordinance  the  manner 
and  the  terms  and  conditions  upon  which  the  license  shall  be 
issued,  the  amount  of  tax  to  be  imposed,  the  mode  of  collecting 
it,  and  to  establish  reasonable  rules  and  restrictions  to  be  ob- 
served in  conducting  the  business  of  these  places.71  Thus  it  is 
within  the  power  of  a  city  having  such  authority  to  provide  by 
ordinance  that  an  applicant  must  obtain  the  consent  of  the  corn- 


specified  tax  and  the  filing  with  the 
city  auditor  of  a  written  consent  to 
the  sale  of  liquor,  signed  by  the  ma- 
jority of  the  voters  of  a  city  should 
upon  the  "  following  conditions  "  be  a 
bar  to  proceedings  under  the  statute 
prohibiting  such  sales  and  one  of  the 
succeeding  conditions  was  the  filing 
with  the  auditor  of  a  copy  of  a 
resolution  of  consent  of  the  city  coun- 
cil, it  was  decided  that  the  action  of 
the  city  council  in  passing  such  a 
resolution  was  not  a  determination 
of  the  sufficiency  of  the  statement  of 
ei  nsent  signed  by  the  voters,  which 
would  protect  it  from  collateral  at- 
tack in  a  suit  to  enjoin  a  liquor 
nuisance.  State  v.  Pressman,  103 
[owa    i  19,  72  N.  W.  660. 

70.  State  v.  Pfeifer,  26  Minn.  175, 
followed  in  State  v.  Fleekenstein,  2G 
Minn.    177. 

71.  City  of  Portland  v.  Selimi.lt,  13 
Dreg.  17.  6  Pac.  221. 

When  must  conform  to  gen- 
eral late. — Where  a  constitutional 
provision  that  laws  of  a  general  na- 
ture shall  have  a  uniform  operation 
throughout    the    state    and    that    no 


special  law  shall  be  enacted  for  which 
provision  has  been  made  by  a  general 
existing  law,  a  local  law  is  invalid 
which  provides  rules  as  to  the  grant- 
ing of  licenses  which  differ  from  the 
general  law.  Smith  v.  State,  90  Ga. 
133,  15  S.  E.  G82. 

Reporting  names  of  liquor 
sellers. — An  ordinance  requiring  the 
city  marshal  to  report  to  the  city 
council  the  names  of  all  persons  en- 
gaged in  the  liquor  traffic,  whether 
licensed  or  unlicensed,  applies  to  all 
persons  engaged  in  such  traffic, 
whether  they  are  wholesalers  or  re- 
tailers. State  v.  Cummings,  17  Neb. 
311,  22  X.  W.  545. 

7ta.  State  v.  City  Council,  7  Wyo. 
417.  :>2  Pae.  !t7.-),  lit  L.  P.  A.  710, 
holding  that  the  discretion  in  Buch 
a  case  should  hi'  reasonably  and 
soundly  exercised  and  not  enfoi 
merely   as  a    matter  of  caprice. 

Where  the  board  of  aldermen  by  a 
vote,  which  has  the  effeel  of  a  stand- 
ing rule,  has  provided  that  no  licenses 
shall  he  granted  unless  si\  members 
of  the  board  shall  assent  thereto  it 
is   held  that  this  rule  while  it   is  in 


260 


LICENSES— MUNICIPAL  POWERS. 


[§  219 


mon  council,7  la  or  to  limit  the  number  of  saloons  for  which  licenses 
may  be  granted,72  or  to  restrict  the  issuance  of  licenses  to  such 
persons  as  have  obtained  a  license  from  the  board  of  county  com- 
missioners,73 or  to  require  a  written  application  and  the  recom- 
mendation of  a  certain  number  of  citizens,  or  a  petition  of  a 
certain  number  of  freeholders,74  or  the  consent  of  a  certain 
number  of  property  owners.743,  A  municipal  corporation  may  also 
make  conditions  as  to  the  character  of  persons  to  whom  a  license 


force  and  acted  upon  determines  the 
effect  of  any  vote  in  granting  a  li- 
cense. Commonwealth  v.  Moran,  148 
Mass.  453,  19  Is.  E.  554,  holding  that 
where  only  four  aldermen  out  of 
seven  present  voted  in  favor  of  an 
applicant  for  a  license,  there  was  no 
license  granted. 

72.  State  v.  Common  Council,  94 
Minn.  81,  101  N.  VV.  1063. 

A  limitation  of  the  number  of  li- 
censed places  within  the  territory  of 
a  town  or  city  is  a  reasonable  ex- 
ercise of  the  police  power  and  is  not 
in  conflict  with  the  Fourteenth  amend- 
ment to  the  constitution  of  the  United 
States.  Decie  v.  Brown,  167  Mass. 
290,  45  N.  E.  765. 

73.  Wagner  v.  Town  of  Ganett,  118 
Ind.  114,  20  N.  E.  706. 

Wells  v.  Torrey,  144  Mich.  689,  108 
N.  W.  423,  holding  that  a  city  ordi- 
nance requiring  saloon  keepers  to  ap- 
ply to  the  city  council  for  license  by 
written  application  accompanied  by 
the  approval  of  a  certain  number  of 
reputable  citizens  and  containing  an 
agreement  to  accept  the  license  sub- 
ject to  the  condition  that  it  may  be 
revoked  at  any  time  by  the  council 
and  providing  for  the  revocation  of 
licenses  by  the  council  on  notice  and 
hearing,  is  not  invalid  because  it  al- 
lows any  one  to  be  disqualified  from 
business  by  the  mere  will  of  the  coun- 
cil, does  not  permit  an  applicant  any 


hearing  on  the  facts  nor  assure  him 
any  hearing  which  can  be  examined 
by  a  competent  court  in  case  of 
capricious  abuse,  and  permits  the 
same  persons  to  be  judges  of  the 
proper  causes  of  rejection  and  of  the 
fitness  of  persons  under  such  causes. 

Where  a  city  had  power  to  grant 
licenses  an  ordinance  providing  that 
an  applicant  for  a  license  should  be- 
fore receiving  the  license  "  produce 
the  written  recommendation  of  four  of 
his  nearest  neighbors,  each  signature 
to  represent  a  separate  and  distinct 
establishment  "  was  held  to  be  legal 
and  valid.  Whitten  v.  Mayor  &  Coun- 
cil of  Covington,  43  Ga.  421. 

74.  Martens  v.  People,  186  111.  314, 
57  N.  E.  871. 

74a.  A  city  ordinance  requiring 
the  obtaining  of  consents  of  property 
owners  within  a  certain  distance  of  a 
proposed  saloon  and  providing  the 
manner  in  which  such  consent  shall 
be  shown  is  not  illegal  as  conferring 
arbitrary  powers  on  the  property 
holders  and  the  city  council.  New 
Orleans  v.  Smythe,  116  La.  685,  41 
So.  336,  L.  R.  A.   (N.  S.),  722n. 

The  fact  that  a  county  license  may 
issue  upon  the  petition  of  a  "  ma- 
jority of  the  tax-paying  citizens  "  in 
the  block  or  square  where  the  busi- 
ness is  to  be  carried  on  does  not 
affect  the  right  of  a  city  to  pass  an 
ordinance  requiring  the  consent  of  the 


§  220] 


LK'E.XSKS     MIMCH'AL    POWERS. 


261 


may  be  granted.75  Again  a  city  or  town  council  having  power 
to  license  and  regulate  the  sale  of  liquors,  may  legally,  in  issuing 
a  license,  confine  the  Bale  of  liquor  to  a  particular  room  in  the 
house.70  But  though  an  ordinance  provides  that  the  business 
shall  be  carried  on  at  one  place  only  it  is  decided  that  as  long  as 
the  business  is  conducted  at  the  place  named,  the  licensee  is 
within  the  provisions  of  the  ordinance  though  he  may  maintain 
more  than  one  bar  at  such  place.77 

§  220.  Conditions  as  to  revoking. 

Power  given  to  a  city  to  restrain,  regulate  or  prohibit  the  sale 


majority  of  the  property  owners  on 
the  street  or  block  as  a  prerequisite 
to  the  granting  of  a  city  license. 
Kansas  v.  Flanders,  71   Mo.  281. 

75.  State  v.  City  Council,  7  Wyo. 
417,  52  Pac.  975,  40  L.  E.  A.  710. 
See  also  People  v.  Blom,  120  Mich. 
45,  78  N.  W.  1015. 

Where  a  city  council  has  discretion 
in  the  granting  of  liquor  licenses,  it 
may  refuse  to  grant  a  license  to  dis- 
reputable characters  whose  conduct 
of  the  liquor  business  would  be  dan- 
gerous to  the  public  peace  and  quiet 
of  the  city.  Perkins  v.  Loux,  14  Idaho 
607,  95  Pac.  694. 

The  phrase  ex  post  facto  law  ap- 
plies to  a  penal  or  criminal  law  or 
to  a  law  affecting  vested  property 
rights  and  an  ordinance  which  pro- 
vides that  one  who  has  been  con- 
victed of  a  felony  or  who  has  been 
convicted  of  selling  liquor  in  places 
where  females  were  employed  shall  be 
deprived  of  his  right  to  a  liquor  li- 
cense is  not  an  ex  post  facto  law 
within  the  meaning  of  that  term, 
though  it  is  retrospective  in  so  far  as 
it  determines  from  the  past  conduct 
of  a  parly,  his  fitness  for  the  pro- 
posed business.  Foster  v.  Board  of 
Police   Commissioners,    102   Cal.   483, 


37  Pac.  763,  41  Am.  St.  Rep.  194. 
The  court  said:  "The  ordinance  in 
question  punishes  no  past  act  com- 
mitted, done  or  suffered  to  be  done 
by  appellant  but  simply  furnishes  a 
standard  applicable  to  all  persons,  by 
which  their  fitness  to  conduct  a  busi- 
ness, in  itself  dangerous  to  the  morals 
and  good  order  of  the  city,  shall  be 
measured."     Per  Haynes,  C. 

76.  Sanders  v.  Town  Council  of 
Elberton,  50  Ga.  178,  holding  that 
whether  two  rooms  in  a  particular 
house,  in  which  it  is  proposed  to  sell 
spirituous  liquors,  be  in  truth  two 
different  places  is  a  question  of  fact. 

77.  City  of  St.  Louis  v.  Gerardi, 
90  Mo.  640,  3  S.  W.  408,  so  holding 
where  the  license  was  for  the  sale  of 
liquors  in  a  hotel  and  the  licensee 
maintained  three  bars  on  the  ground 
floor  of  the  hotel,  screened  off  by 
partitions  having  direct  and  imme- 
diate connection  by  doorways,  all  of 
which  were  accessible  to  the  guests 
without  going  out  of  the  hotel. 

78.  State  v.  Hoctor  (Xeb.  1909), 
120  X.  W.  199.  s,-e  also  Schwuchow 
v.  Chicago,  68  111.  444.  See  chapter 
XIV  herein. 

An  ordinance  regulating  the  licens- 
ing  of  the   sale   of   near    beer   which 


262  LICENSES— MUNICIPAL  POWERS.  [§   221 

of  intoxicating  liquors  by  ordinance  is  sufficient  to  authorize  the 
adoption  of  by-laws  or  rules  controlling  the  traffic,  including  the 
right  to  revoke  a  license  upon  the  violation  of  any  statute  or 
ordinance  of  the  city  pertaining  to  the  traffic  or  for  a  violation 
of  any  reasonable  regulation  adopted  for  the  control  of  the 
traffic.78  And  where  a  party  applies  for  and  accepts  a  license  under 
an  ordinance  imposing  restrictions  and  conditions,  and  the  license 
itself  contains  a  condition  that  it  may  be  revoked  at  the  discretion 
of  the  mayor,  the  licensee  thereby  assents  to  the  terms  and  con- 
ditions imposed,  both  in  the  license  and  the  ordinance  under 
which  it  was  issued.79  And  a  provision  in  a  statute  delegating 
power  to  a  municipal  corporation  to  grant  licenses  that  no  license 
shall  be  granted  for  less  than  a  year  does  not  deprive  the  muni- 
cipality in  the  exercise  of  its  power  of  regulation  to  revoke  a 
license.80  But  power  conferred  by  charter  upon  a  city  "  to 
license,  regulate  and  restrain  "  the  traffic  in  intoxicating  liquors 
is  held  not  to  imply  the  power  to  prescribe  upon  what  conditions 
the  license  may  be  revoked,  it  being  declared  that  the  words  are 
to  be  construed  in  their  usual  sense  and  cannot  be  enlarged  by 
construction,  but  rather  are  to  be  regarded  as  an  express  limita- 
tion upon  the  municipal  authorities  empowering  them  to  deal 
with  the  subjects  only  in  the  respects  these  words  imply.81 

§  221.  Prescribing  limits  for  licensing  traffic. 

The  legislature  is  authorized  to  empower  city  councils  by 
special  charter  to  prescribe  the  bounderies  and  limits  within 
which  the  sale  of  liquor  may  be  licensed,  and  in  such  a  case  the 


provides  that  the  license  shall  be  for-  488  n ;  Sehwuchow  v.  City  of  Chicago, 

feited    if   the    holder    is   convicted   of  08  111.  444. 

violating  the  slate  liquor  laws  or  the  80.  State  v.  Dwyer,  21  Minn.  512. 

ordinance  of  the  municipality  is  valid.  81.  State   v.   Milwaukee,    129   Wis. 

Campbell  v.  City  of  Thomasville   (Ga.  5G2,  109  N.  W.  421,  holding  that  the 

1909),  64  S.  E.  815.  general  laws  in  respect  thereto  were 

79.  Malkan    v.    Chicago,    217    111.  exclusive. 
471,  7.",  N.  E.  548,  2  L.  R.  A.   (N.  S.) 


§  222]  LICENSES— MUNICIPAL  POWERS.  263 

local  authorities  may  define  and  limit  the  ana  within  which  alone 
such  sale  may  be  lawful.82  And  a  statute  authorizing  cities  to 
pass  ordinances  prohibiting  the  sale  of  intoxicating  liquors  in 
the  residence  portion  thereof,  and  confining  the  sale  to  the  busi- 
ness portion  is  not  unconstitutional  as  being  local  or  special 
legislation.83  And  an  ordinance  passed  in  the  exercise  of  the 
power  conferred  upon  a  municipality  which  prescribes  the  limit- 
within  which  intoxicating  liquors  may  and  may  not  l>e  sold  and 
which  provides  that  the  ordinance  shall  not  be  so  construed  as 
affecting  liquor  licenses  already  granted  is  not  void  on  the  ground 
of  unjust  and  unreasonable  discrimination  in  that  under  such 
ordinance  the  license  of  one  dealer  may  expire  before  the  licenses 
of  others  and  that  therefor  he  is  prevented  from  conducting  the 
business  for  the  same  period  of  time  as  they  are.84  And  it  has  also 
been  decided  that  powers  given  to  a  city  to  license,  regulate  and 
prohibit  are  not  to  be  construed  as  given  in  the  alternative  but 
cumulatively,  and  to  be  exercised  concurrently  whenever  the 
municipal  authorities  in  their  discretion  see  fit  to  exercise  them. 
Therefore  under  such  power  a  city  may  license  the  liquor  traffic 
in  one  section  of  its  territory  and  prohibit  it   in  the  residue.85 

§  222.  Ordinance  viod  in  part. 

The  general  principle  applicable  in  the  case  of  a  statute  that 
if  it  contains  both  valid  and  invalid  provisions  and  the  invalid 
part  can  be  stricken  out  and  the  remainder  can  stand  complete 
by  itself  effect  will  be  given  thereto,86  applies  also  in  the  case  of 


82.  Andreas     v.     Beaumont      (Tex.  Iiul.  14.  46  N.  E.  138. 

Civ.  1908),  113  S.  W.  014.  83.  Shea    v.    Muncie,    148    Ind.    14, 

Effect  of  license  from  county.  46   X.   E.   138.     See   §§   100  and   101, 

—Where  a  city  under  authority  con-  herein. 

ferred   upon   it   has   prohibited    Bales  84.  Andreas   v.   City   of   Beaumoni 

within  a  certain  pari  thereof  a  license  (Tex.  Civ.  1908),  113  S.  W.  614. 

issued  by  a   county  does  not  exempt  85.  People  v.  Cregier,  138  111.  401, 

the  licensee  from  a  compliance  with  28  X.  E.  812. 

such  regulation.    Shea  v.  Muncie,  1  is  s<».  Sec   8   07.  herein. 


264  LICENSES— MUNICIPAL   POWERS.  r§    223 

an  ordinance.  So  though  a  provision  of  an  ordinance  that  a 
license  may  be  transferred  is  void  as  being  contrary  to  statute, 
yet  if  this  part  can  be  stricken  out  and  there  will  remain  a  com- 
plete and  perfect  ordinance  it  is  decided  that  such  part  will  be 
allowed  to  stand.87  And  though  a  town  may  have  no  right  to 
exact  a  license  for  the  sale  of  a  certain  liquor  yet  this  will  not 
invalidate  an  ordinance  in  respect  to  other  liquors  which  it  has 
the  power  to  regulate  and  license.88  Again  though  under  the 
laws  of  the  state  a  person  may  sell,  without  license,  liquors  in 
excess  of  a  certain  quantity,  an  ordinance  prohibiting  the  sale  of 
liquor  without  license  and  which  specifies  no  quantity,  is  valid 
as  to  sales  in  quantities  less  than  those  permitted.89  But  where 
the  liquor  license  was  fixed  by  the  same  ordinance  by  which  the 
revenue  licenses  were  fixed  and  the  latter  were  not  intended  as 
police  regulations,  it  was  declared  that  it  would  be  a  strained 
construction  to  single  out  the  liquor  license  as  a  police  regulation, 
and  therefore  validly  imposed  and  yet  to  hold  that  the  other 
licenses  were  intended  for  revenue  and  invalid,  merely  because 
the  liquor  license  was  higher.90 

§  223.  Delegation  of  power  by  municipality. 

Where  the  power  to  license  is  conferred  upon  the  councils  of 
cities  and  villages  such  power  cannot  be  delegated  to  officers  or 
individuals.91  So  power  granted  to  the  common  council  of  a  city 
to  license  and  regulate  saloons  cannot  be  delegated  by  the  council 


87.  Wallace   v.   Cubanola,   70   Ark.  App.    654,    citing   East    St.    Louis   v. 
395,   68   S.  W.  485.  Wehrung,  50  111.  28;   Suarth  v.  Peo- 

88.  Warner  v.  Town  of  Ganett,  118  pie,  109  111.  621. 

Ind.   114,  20  N.  E.   706.  May  appoint  person  to  collect 

89.  State  v.  Pirester,  43  Minn.  373,  tax. — Power  to  impose  a  license  tax 
45  N.  W.  712.  includes     the     power     to     appoint     a 

90.  Sheriff  v.  Daigle,   107  La.  510,  suitable    person    to    collect    the    tax. 
32  So.  94.  In  re  Lawrence,  69  Cal.  608,  11  Pac. 

91.  Carbondale    v.    Wade,    106    111.  217. 


§  224]  LICENSES     MUNICIPAL   POWERS.  265 

to  the  mayor  of  the  city.02  And  where  exclusive  legislative  power 
is  conferred  in  regard  to  controlling  or  prohibiting  the  traffic  in 

intoxicating  liquors  and  there  is  no  referendum  clause  it  is 
decided    that   the   power  cannot   he   delegated    to    the   elector 

But  the  city  council  may  delegate  the  power  to  issue  a  license  to 
the  clerk  of  the  council,  where  such  power  is  purely  ministerial 
and  involves  the  exercise  of  neither  judgment  nor  discretion.'" 
And  when  a  city  is  authorized  to  license,  regulate  or  prohibit  the 
sale  of  intoxicating  liquors  an  ordinance  is  held  to  be  valid  which 
authorizes  a  committee  of  the  council  to  refuse  a  liquor  license 
if  in  their  opinion  the  location  of  the  saloon  would  disturb  the 
public  peace  and  good  order,  and  providing  an  appeal  to  the 
board  of  mayor  and  aldermen  from  the  determination  of  the  com- 
mittee. Such  an  ordinance,  though  it  vests  a  discretion  in  the 
committee  is  declared  not  to  be  subject  to  the  objection  that  it 
vests  an  arbitrary  discretion,  as  the  legislature  could  vest  such  a 
discretion  and  under  such  a  general  power  to  the  city,  it  may 
likewise  do  so.95 

§  224.  License  subject  to  valid  ordinances. 

A  license  to  sell  liquors  is  taken  by  the  licensee  subject  to  the 
valid  ordinances  of  the  city  or  town  in  which  he  carries  on  his 
business.90  And  it  has  been  decided  that  an  ordinance  passed 
subsequent  to  the  issuance  of  a  license  denouncing  a  penalty  of 
a  fine  for  its  violation  by  such  person  as  shall  keep  open  his 
saloon  after  a  certain  hour  at  night,  is  not  subject  to  the  charge 

92.  Winans  v.  Bayonne,  44  N.  J.  L.       96  Pac.   505. 

114,    holding   that    an    ordinance    an-  04.  in  re  Guerrero,  GO  Cal.  88,  10 

thorizinj;  the  mayor,  upon  the  recom-       p        ggl 

mendation  of  the  common  council,  to  «_.-.,  T  ,    ,     .,       „,„ 

.,  .      ..         ,       ,    ,     ,  !),>-  Cooke   v.   Loner,   lol   Ala.   540, 

issue  a  permit  for  the  sale  of  ale,  beer  r 

and  other  malt  beverages,  at   picnics  •*•*   s"-   ,s- 

or  social  gatherings,  for  a  license  fee  •«■  Baldwin  v.  Smith,  82  111.  162; 

was  illegal  and  void.  Maxwell  v.  Corporation  of  Jonesboro, 

98.  Galindo  v.  Walter  (Cal.  C.  A.).  11  Ileisk.   (Tenn.)   257. 


2GG 


LICENSES— MUNICIPAL   POWERS. 


[§   225 


of  being  an  ex  post  facto,  or  retroactive  law,  unless  the  act  sought 
to  be  punished  was  committed  prior  to  its  passage.97 

§  225.  As  to  repeal  of  powers. 

The  power  of  cities  and  towns  as  to  licensing  will  of  course 
not  be  affected  by  a  subsequent  statute  which  provides  that  no 
provision  of  such  act  shall  be  so  construed  as  to  interfere  with 
or  in  any  way  to  abridge  the  powers  granted  to  them.98  And 
though  by  amendments  to  the  constitution  and  statutes  of  the 
state,  the  power  of  cities  to  license  the  liquor  traffic  may  be  taken 
away,  yet  such  an  amendment  will  not  by  mere  implication  be 
given  a  construction  taking  away  the  power  to  punish  for  selling 
liquors  in  violation  of  law  and  of  the  ordinances  passed  by  the  city 
in  the  exercise  of  its  power  to  regulate  the  traffic.99  But  where  a 
general  act  to  establish  a  uniform  license  system  throughout  a 
state  is  passed  which  is  inconsistent  with  a  prior  special  act  con- 
ferring power  on  a  town  to  license  the  traffic  in  liquors,  the  latter 
act  will  be  regarded  as  repealed  by  the  general  law.1     And  the 


97.  State  v.  Isabel,  40  La.  Ann. 
340,  4  So.  1. 

98.  State  v.  Neeper,  3  G.  Greene 
(Iowa)    337. 

Where  cities  are  classified,  charters 
granted  to  cities  of  a  certain  class 
authorizing  licenses  to  he  issued  or 
refused  by  such  cities  does  not  re- 
peal prohibitory  law  where  the  char- 
ters of  such  cities  provide  that  "  no 
license  shall  be  issued  or  granted  in 
any  city  where  the  sale  of  such  liq- 
uors is  now  forbidden  by  law  until 
such  law  is  changed."  Raubold  v. 
Commonwealth,  21  Ky.  Law  Rep. 
11:.'.-,.    54    S.    W.    17. 

99.  Franklin  v.  Westfall,  27  Kan. 
(il  1. 

1.  People  v.  Town  of  Thornton,  ISO 
111.  Ifi2,  57  N.  E.  841. 

Where  a  charter  of  a  town 
authorizes    it    to     collect    a    tax 


from  liquor  dealers  subject  to  such 
general  school  law  as  the  state  may 
adopt,  the  subsequent  passage  of  a 
general  law  forbidding  the  levying  of 
an  additional  tax  on  a  license  therein 
provided  for  in  such  law  for  city, 
county  or  town  purposes  repeals  the 
power  conferred  by  the  charter. 
Tupelo  v.  Beard,   56  Miss.   532. 

A  charter  to  a  city  which  exempts 
persons  procuring  a  liquor  license 
from  the  city  from  paying  a  license 
tax  to  the  county  for  carrying  on  the 
business  is  repealed  by  a  general  law 
which  provides  for  a  license  tax  for 
the  counties  and  which  in  express 
terms  repeals  all  laws,  general  and 
special  in  conflict  with  its  terms; 
though  a  subsequent  act  passed  the 
same  year  confers  power  on  counties 
1<>  levy  a  liquor  tax  but  provides  that 
the  statute  shall  not  affect  the  exemp- 


§  225] 


I.M  I  \h:k     MIWICIPAL    POWEKS. 


2r>7 


legislature  may,  where  it  Las  conferred  power  upon  certain 
officials  to  grant  licenses,  by  a  subsequent  enactment,  take  away 
all  powers  so  conferred,  or  provide  that  they  shall  be  relieved  of 
such  powers  upon  the  happening  of  a  certain  contingency,   and 


tions  allowed  by  city  charters.  Gas- 
Ion  v.  O'Neal,  145  Ala.  484,  41  So. 
742. 

A  provision  in  a  city  charter  per- 
mitting the  city  to  license  saloons 
and  to  keep  the  moneys  coining  to  the 
city  by  taxation  or  otherwise  is  re- 
pealed by  intendment  by  a  later  gen- 
eral statute  making  a  dill'erent  dis- 
position of  a  portion  of  the  funds  re- 
ceived from  liquor  license  in  all  in- 
corporated towns,  cities  and  villages 
in  the  state.  State  v.  Spokane  Falls, 
2  Wash.  40,  25  Pae.  903. 

A  code  provision  authorizing 
cities  to  fix  tlie  license  fee  but 
providing  that  it  shall  not  be  below 
or  in  excess  of  certain  staled  amounts 
is  repealed  by  implication  by  an  act 
empowering  cities  to  frame  their  own 
charters  and  to  fix  by  ordinance  the 
amount  to  be  paid  therefor  and  im- 
posing no  restriction  as  to  the  amount. 
Seattle  v.  Clark,  28  Wash.  717,  69 
Pac.  407. 

A  statute  conferring  exclu- 
sive power  on  towns  to  grant 
licenses  to  sell  liquor  within  their 
limits  is  not  repealed  by  a  subse- 
quent general  law  providing  for  the 
granting  of  licenses  by,  and  the  pay- 
ment of  the  state  tax  to  the  county 
clerk  and  which  further  provides 
that  a  license  granted  by  a  city  or 
town  having  authority  to  grant  the 
same  shall  be  void  unless  the  state 
license  be  obtained  and  the  state  be 
paid  before  the  grant  thereof. 
Adams  v.  Stephens,  88  Ky.  443,  11 
S.  W.  427.  See  State  v.  Prats,  10  La. 
Ann.  785. 

Where    a    town    is    given    the    sole 


and  exclusive  power  to  grant  licensi  • 
to  retail  spirituous  and  vinous  liquors 
within  iu  limits  a  subsequent  act 
which  forbid  the  granting  of  licen  — 

to  sell  liquor  in  less  quantity  than 
one  gallon  is  held  simply  to  suspend 
the  exercise  of  the  power  by  the  town 
for  want  of  some  subject  on  which 
it  can  operate  and  where  a  later  law 
is  passed  restoring  the  capacity  to 
obtain  a  license,  the  impediment  to 
the  exercise  of  the  power  by  the 
town  is  removed.  Corporation  of 
Aberdeen  v.  Saunderson,  8  Sm.  &  M. 
(.Miss.)  663. 

A  statute  providing  that  a  so- 
cial club  upon  payment  of  a  certain 
tax  may  distribute  liquors  among  its 
members  and  exempting  them  from 
obtaining  any  license  or  paying  any 
of  the  tax  is  a  limitation  upon  the 
power  conferred  prior  thereto  upon 
cities  and  towns  to  impose  a  license 
tax  for  the  benefit  of  such  cities  and 
towns.  Norfolk  v.  Board  of  Trade  & 
Business  Mens'  Ass'n.,  109  Va.  353, 
63  S.  E.  987. 

■Where  acts  not  inconsistent. 
— Where  power  is  conferred  upon  a 
town  by  the  act  of  incorporation  to 
grant  licenses  for  the  retail  of  spiritu- 
ous liquors  the  statute  conferring  it 
will  not  be  regarded  as  repealed  by 
another  enactment  passed  by  the 
same  legislature,  a  few  months  later 
prohibiting  the  sale  of  Buch  liquors 
within  a  designated  distance  of  cer- 
tain specified  churches  it  not  appear- 
ing that  any  of  the  churches  are 
within  the  town  so  incorporated. 
Hart  v.  State,  88  Ga.  035.  15  S.  E. 
684. 


oC§  LICENSES— MUNICIPAL   POWEKS.  [§    225 

vest  the  power  in  other  officials.2  And  a  city  may  also  be  ousted 
from  the  exercise  of  assumed  and  unwarranted  corporate  powers 
in  indirectly  levying  and  collecting  license  taxes  on  those  engaged 
in  the  unlawful  sale  of  intoxicating  liquor  within  the  city.3 

2.  Fitzgerald  v.  Hurley,  180  Mass.  sums  of  money  paid  from  time  to 
151,   C>1   N.   E.   815.  time  in  stipulated  sums,  in  the  form 

3.  State  v.  City  of  Coffey ville,  78  of  simulated  fines  and  forfeitures, 
Kan.  599,  97  Pac.  372,  so  holding  persons  were  permitted  to  carry  on 
where  it  was  alleged  that  for  certain  such  unlawful  business. 


OBTAINING    OF    LICENSE   OENEBALLY.  LVJ 


CHAPTEK  XI. 

OBTAINING  OF  LICENSE  GENERALLY. 

Section  226.  Right  to  license  generally— renewal. 

227.  Strict  compliance  with  law  essential  to  right— payment  of  fee. 

228.  Necessity  of  obtaining  license. 

229.  Inability  to  obtain   license — effect  of. 

230.  Refusal  to  issue  license — effect  of. 

231.  Form  of  license  generally. 

232.  More  than  one  license  may  be  required. 

233.  More  than  one  license — liquors  sold  in  connection  with  other 

business. 

234.  Licenses  for  hotels  and  taverns. 

235.  To  whom  license  may  issue — corporations. 

236.  To  whom  license  may  issue — foreign  corporations. 

237.  To  whom  license  may  issue — partners. 

238.  To  whom  license  may  issue — women. 

239.  Removal  permits — application  for. 

240.  Applicant  must  possess  requirements— fitness. 

241.  As  to  character  of  applicant. 

242.  As  to  the  petition  or  application. 

243.  Time  of  filing  petition. 

244.  Petition   description  and   location   of  premises. 

245.  Petition — statements  as  to  applicant. 

246.  Petition — false  statements — omission  to  answer. 

247.  Petition  defective — amendment. 

248.  Petition — recommendation — signing  of. 

249.  Petition — freeholders— who  are. 

250.  Petition — freeholders  must  be  bona  fide. 

251.  Notice  of  application — necessity  of. 

252.  Notice  of  application— necessity  of  publication  of. 

253.  Notice  of  application— sufficiency  of  publication. 

254.  As  to  consents  generally. 

255.  Sufficiency  of  consent— signers. 

256.  Consents  of  owners  of  dwellings— sufficiency  and  necessity  of. 


o7()  OBTAINING   OF  LICENSE  GENERALLY.  [§   226 

Section  257.  Exemption  from  obtaining  consents — New  York  Liquor  Tax  Law. 

258.  Within  certain  distance — nearest  entrance — determining  distance 

and  entrance. 

259.  Words   "  church  "   and  "  schoolhouse  "  as   used  in   license   laws 

construed. 

260.  Remonstrances  generally. 

261.  Remonstrances — persons  authorized  to  remonstrate. 

262.  Remonstrances — signing  of. 

263.  Remonstrances — right  to  withdraw  from. 

264.  Remonstrances — form  and  sufficiency  of. 

265.  Remonstrances — hearing  of — procedure — appeal. 

266.  Remonstrances — burden  of  proof. 

267.  Mode  of  testing  validity  of  license — collateral  attack — estoppel. 

§  226.  Right  to  license — generally — renewal. 

No  one  has  a  property  right  to  have  issued  to  him  a  license  to 
sell  intoxicating  liquors.1  Such  a  license  is  not  a  privilege  or 
right  that  any  citizen  may  demand  or  have  for  the  asking,  but  is 
rather  in  the  nature  of  a  favor  that  may  or  may  not  be  granted 
by  those  in  authority,  in  accordance  with  the  laws  of  the  state.2 
And  where  the  right  to  obtain  a  license  is  limited  by  a  statutory 
provision  which  requires  the  question  whether  intoxicating  liquors 
may  be  sold  at  retail  to  be  first  submitted  upon  petition  at  the 
annual  municipal  election  and  answered  in  the  affirmative  by  the 
majority  of  the  qualified  voters,  no  valid  license  can  be  issued 
except  in  accordance  with  such  provision.3  So  the  order  of  a 
county  court  to  its  clerk  to  issue  license  to  retail  spirituous  liquors 
to  an  applicant,  does  not,  of  itself,  authorize  the  applicant  to 
retai],  but  only  authorizes  the  issuance  of  a  license  to  do  so,  after 
tin-  applicant  shall  have  complied  with  the  prerequisites  of  the 
law.'  lint  where  the  state  legalizes  the  business  of  selling  liquors 
and  an  individual  citizen  is  denied  the  right  to  engage  in  it  in  a 

1.  Plumb  v.  Christie,  103  Ga.  686,  3.  State  v.  Mcllvenna,  21  S.  D. 
30  S.   E.  75!),  42  L.  R.  A.  181.  480,  113  N.  W.  878. 

2.  Sehwirman    v.    Town    of    High-  4.  Brown  v.  State,  27  Tex.  335. 
land  Park,   130   Ky.   537,    113   S.    W. 


§  226] 


OBTAINING   OF    LICENSE   GENERALLY. 


271 


place  and  under  conditions  where  and  under  which  others  having 
no  better  qualifications  than  he  are  so  engaged,  the  law,  it  is  said, 
if  any  law  there  be  authorizing  such  denial,  has  no  just  founda- 
tion in  reason  or  in  the  police  power  of  the  state,  for  it  depri 
one  citizen  of  the  right  to  earn  his  livelihood  by  means  of  a  lawful 
calling  whilst  according  that  right  to  others  similarly  situated, 
and  in  so  doing  deprives  him  of  the  equal  protection  of  the  law 
and  of  his  liberty  without  due  process  of  law  and  oversteps  those 
restrictions  upon  legislation  which  are  said  to  be  inherent  in  the 
nature  of  American  institutions.5  In  New  Jersey  the  right  to  a 
renewal  of  a  license  to  sell  intoxicating  liquors  in  cities  of  the 
second  class  upon  the  petition  of  an  applicant  without  the  rec- 
ommendation of  freeholders,  is  confined  to  the  person  to  whom 
the  license  was  originally  granted  and  a  transferee  of  such  license 
for  an  unexpired  term  is  not  entitled  to  such  renewal,  but  in  In- 
case it  is  an  application  for  a  new  license  and  he  must  furnish 
the  certificate  of  the  required  number  of  freeholders.6 


5.  State  v.  City  of  New  Orleans, 
113  La.  371,  36  So.  999. 

Where  a  person  has  complied  with 
the  law  of  the  state  in  obtaining  a 
county  license  authorizing  him  to  sell 
i  liquors  within  a  certain  city, 
such  city  has  no  power  to  refuse  him 
a  city  license  where  he  has  presented 
his  county  license  to  the  proper  mu- 
nicipal authorities,  filed  his  bond 
with  the  county  clerk  and  paid  to 
the  city  treasurer  the  amount  re- 
quired  by  the  city  ordinance  for  such 
license.  Territory  v.  Robertson,  19 
Okla.   14!).  92  Pac  144. 

<!•  Kidd  v.  Board  of  Excise  (N.  J. 
1909),  73  Atl.  59,  so  decided  in  eon- 
struing  an  ad  providing  thai  in  all 
cities  of  the  second  class,  after  a  li- 
cense has  once  been  granted  to  any 
person  or  persons  at  any  place  in  such 
license  designated  it  shall  not  be  req- 


uisite in  order  to  give  jurisdiction 
to  grant  renewals  of  such  licenses, 
that  a  new  application  recommended 
by  freeholders  shall  be  first  signed 
and  presented  to  such  board  but  that 
the  filing  with  the  body  or  board  au- 
thorized to  -rant  and  renew  licenses 
in  any  such  city,  of  a  petition  for  re- 
newal, signed  by  the  applicant  accom- 
panied by  a  new  bund  of  the  E 
tenor  as  accompanied  the  first  appli- 
cation, shall  confer  the  power  upon 
such  a  board  for  the  term  of  one 
year.  Ad  Feb.  10,  1S91  (P.  L.,  p. 
12). 

As  to  the  renewal,  see  also  in  this 
state.  Tross  v.  Board  of  Excise,  59 
X.    1.  L.  97,  35  Atl.  646. 

"New  place"  as  used  in  statute 
cniHt  rued.  A  place  does  not  become 
a  '"new  place"  within  the  meaning 
of   a   statute   merely   because   of   the 


272  OBTAINING   OF   LICENSE   GENERALLY.  [§   227 

§  227.  Strict  compliance  with  law  essential  to  right — payment 
of  fee. 

The  right  to  sell  liquors  depends  solely  upon  a  strict  com- 
pliance with  the  license  laws.7  "  The  authorities,  almost  without 
exception,  seem  to  concur  in  requiring,  in  respect  to  the  obtaining 
of  the  required  license,  a  strict  compliance  with  the  law."  8  So 
where  the  statute  does  not  prohibit  a  licensing  board  from  acting 
upon  the  application  for  a  license  before  the  fee  is  paid  it  may 
do  so  and  may  order  the  license  to  issue  upon  the  payment  of  the 
fee,  and  if  such  a  condition  is  not  made  a  part  of  the  order  the 
law  imposes  the  same  and  will  not  permit  the  issuing  of  the 
license  until  the  fee  is  paid.9  So  the  payment  of  a  less  sum  for 
a  license  than  the  law  specifies  does  not  authorize  its  issuance, 
and  if  one  is  issued  under  such  conditions  it  will  be  void   and 


refusal  of  a  license  therefor  unless 
there  has  after  such  refusal  been  an 
abandonment  of  the  place  for  the 
purpose  of  such  traffic.  The  court 
said:  "The  conclusion  which  we 
have  reached  is  that  it  was  not  the 
legislative  intent  to  prevent  the  re- 
newal or  continuance  of  a  license  to 
sell  liquor  at  a  place  in  existence  at 
the  time  the  law  went  into  effect, 
unless  there  is  a  real  and  substantial 
abandonment  of  the  premises,  and 
that,  therefore,  there  must  be  some- 
thing more  than  the  mere  refusal  of 
the  court  to  continue  or  renew  a 
license  to  bring  the  place  within  the 
legislative  definition  of  '  new  place  '. 
If  it  appeared  that  after  opportunity 
to  renew  an  application  which  had 
been  denied,  the  applicant  had  neg- 
lected his  opportunity  to  obtain  a 
license,  or  done  anything  to  indicate 
an  abandonment  of  the  business,  then 
we  think  it  may  lose  its  place  in  the 
class  which  the  law  evidently  in- 
tended to  protect."  Eckersly  v.  Ab- 
bott (N.  J.  S.  C.  1909),  74  Atl.  313. 
Per  Bergen,  J. 


7.  Schwartz  v.  People  (Colo.  1909), 
104  Pac.  92. 

8.  Keisa  v.  State,  78  Ind.  430.  Per 
Woods,  J. 

»•  Seele  v.  Phelps,  81  Neb.  G90, 
116  N.   W.   681. 

Tender  of  fee  not  sufficient.— 
Where  an  applicant  is  by  statute  re- 
quired to  pay  the  amount  of  his  li- 
cense fee  into  the  treasury  before  the 
license  will  be  issued  no  formal  tender 
of  the  amount  to  the  treasurer,  with- 
out payment,  will  support  an  action 
against  another  officer  refusing  to  is- 
sue the  license.  But  if  the  treasurer 
refuses  to  accept  the  fee  then  manda- 
mus will  lie  against  him.  Claus  v. 
Hardy,  31  Neb.  35,  47  N.  W.  418. 

Mandamus  for  revocation.— A 
license  issued  and  delivered  without 
requiring  payment  of  the  license  fee 
being  null  and  void  the  issuance  of 
a  writ  of  mandamus  for  its  revoca- 
tion is  an  idle  and  fruitless  act  and 
on  appeal  requires  affirmance  of  a 
judgment  denying  such  writ.  State 
v.  Hammel,  134  Wis.  61,  114  N.  W. 
97. 


228] 


<>r,i  a i mm.  of  i.k  i:mi:  <,i:m:i;ally. 


confer  no  rights  upon,  or  protection  to,  the  licensee.10  And  under 
a  statute  providing  that  before  a  license  shall  be  granted  "  the 
applicant  shall  pay  to  the  collector,  and  produce  his  receipt 
for  the  amount  of  money  and  fees  specified,"  where  the  judgment 
of  the  county  court  granting  the  license  to  a  person  shows  af- 
firmatively that  the  license  tax  was  not  paid,  it  is  void  for  want 
of  jurisdiction  and  the  license  granted  is  void.11 

§  228.  Necessity  of  obtaining  license. 

When  the  law  requires  a  license  as  a  condition  precedent  to 
engage  in  the  liquor  traffic  a  strict  compliance  with  such  law  is 
necessary.12  So  it  is  a  valid  exercise  of  the  police  power  to 
require  that  a  license  be  obtained  by  a  druggist  for  the  privilege 
of  retailing  spirituous  and  vinous  liquors.13  And  a  statute  may 
make  it  a  prerequisite  to  the  right  to  use  liquors  in  compounding 
medicines  that  a  license  shall  be  obtained.14  And  a  place  used 
for  the  storage  of  liquors  and  from  which  they  are  sold  to  retail 
dealers  in  the  same  packages  as  received  from  a  brewery  has 
been  held  to  be  a  place  for  which  a  license  must  be  procured 
under  a  law  imposing  a  tax  upon  each  place  where  the  business 
of  trafficking  in  liquors  is  carried  on.15  But  dispensary  commis- 
sioners under  a  local  dispensary  act  are  held  to  be  government 

i<>.  Spake  v.  People.  89   111.  G17.  22  Fla.   1;   Johnson  v.   State,  60  Ga. 

Where    the    statute   regulating   the  (134:    Bingham   County  v.   Fidelity  & 

granting  and  issuance  of  licenses  does  D.  Co.,  13  Ida.  34,  88  Par.  829;  City 

not  authorize  the  licensing  board  to  of  Montpelier  v.  Mills.   171   Ind.   175, 

accept  less  than  the  prescribed  amount  85  N.  E.  G. 

before    issuing   the    license,    although  The   mere    fact   that   one  keep-    in- 

the  license  may  cover  only  a  pari  of  toxicating  liquors  for  home  consump- 

the    current     license    year,    the    pay-  1  ion  will  not  authorize  him  to  sell  or 

ment   of    the   full    fee   prescribed    be-  keep     for    sale     intoxicating     liquors 

fore  the  license  issues   is  a    condition  without  a  license  or  permit.     Holt   v. 

precedent    to    the    validity     of    such  State.  62   Neb.   134,  86  X.  \V.   1073. 
license.     State  v.   Hammel.   134  Wis.  13.  Commonwealth    v.    Fowler.    98 

61,  114  X.  W.  97.  Ky.  648,  34  S.  W.  21. 

11.  Alexander     v.     State.     77     Ark.  14.   State  v.  Gray,  61  Conn.  39,  22 
294.  91  S.  W.  181.  Atl.  675. 

12.  State  v.  County  Commissioners, 


274 


OBTAINING   OF   LICENSE   GENERALLY. 


[§   229 


officials  and  not  liquor  dealers  within  the  meaning  of  a  taxing 
act.16 

§  229.  Inability  to  obtain  a  license — effect  of. 

The  fact  that  a  license  to  sell  intoxicating  liquors  cannot  be 
obtained  gives  no  right  to  a  person  to  sell  without  one,  where  a 
license  to  sell  is  necessary  to  confer  such  right.17  So  in  Missouri 
it  has  been  decided  that  the  fact  that  there  was  no  officer  or  tri- 
bunal in  St.  Louis  authorized  to  grant  a  saloon  license  was  no 
defense  to  a  prosecution  for  selling  intoxicating  liquors  at  retail 
in  that  city  in  violation  of  the  license  laws  of  the  state.18  And 
the  inability  to  renew  a  license  owing  to  the  inability  of  the 
official,  having  authority,  to  issue  it,  does  not  entitle  a  person  to 
sell  without  a  license.19  And  in  a  case  in  Indiana  it  was  decided 
that  the  fact  that  there  was  no  provision  for  obtaining  a  license  to 


15.  Reyman  Brew.  Co.  v.  Bristor, 
92  Fed.  28.  Compare  Hanson  v.  Luce, 
50  Ohio  St.  440,  34  N.  E.  435,  as  to 
right  to  store  where  no  purchases  are 
made. 

16.  Dispensary  Commissioners  v. 
Thornton,  106  Ga.  106,  31  S.  E.  733. 

The  court  said:  "The  dispensary 
act  itself  not  imposing  such  a  burden 
upon  these  commissioners  we  do  not 
think  the  power  of  levying  the  tax 
can  be  derived  from  the  general  tax 
act  of  the  state.  An  examination  of 
the  dispensary  act  itself  will  show 
that  the  commission  could  not  prop- 
erly be  classed  with  liquor  dealers 
under  the  tax  act.  No  sales  under 
tliis  local  act  can  ever  be  allowed  for 
private  gain.  *  *  *  All  the  proceeds 
of  the  dispensaries  must  be  turned 
over  to  the  county  and  town  au- 
thorities and  the  requirment  to  estab- 
lish dispensaries  is  mandatory.  We 
do  not  mean  to  say  that  the  legisla- 
ture cannot  impose  a  tax  upon  such 
a    business    conducted    in    the    public 


interest.  That  question  is  not  now 
before  us.  What  we  do  decide  is,  that 
there  is  no  existing  law  in  this  state 
which  by  fair  and  reasonable  con- 
struction, imposes  any  tax  upon  the 
business  of  dealing  in  liquors  through 
the  medium  of  this  public  dispensary." 
Per  Lewis,  J. 

17.  Indiana. — Common  Council  v. 
Fairchild,  1   Ind.  315. 

Kentucky. — Rosenham  v.  Common- 
wealth, 8  Ky.  Law  Rep.  519,  2  S.  W. 
230. 

Louisana. — State  v.  Brown,  41  La. 
Ann.  771,  6  So.  638. 

Michigan. — Smith  v.  Adrian,  1 
Mich.  495. 

Minnesota. — State  v.  Kantler,  33 
Minn.  69,  21  N.  W.  856. 

Missouri. — State  v.  McNeary,  88 
Mo.   143. 

Nebraska. — Huntzinger  v.  State,  39 
Neb.  653,  58  N.  W.  194. 

is.  State  v.  McNeary,  88  Mo.  143. 

19.  Reese  v.  City  of  Atlanta,  63 
Ga.   344. 


§   230]  OBTAINING   OF   LICENSE   GENERALLY.  275 

sell  liquors  upon  the  Ohio  River  did  not  authorize  a  sale  of  such 
liquor  thereon  without  a  license.20  So  in  prohibition  districts  of 
a  state  the  law  in  regard  thereto  must  be  obeyed,  and  a  person 
cannot  set  up  in  defense  to  an  indictment  for  selling  without  a 
license  that  the  sale  was  in  such  a  district.21 

§  230.  Refusal  to  issue  license — effect  of. 

Though  a  person  may  have  complied  with  the  necessary  acts 
on  his  part  to  the  issuance  of  the  license,  yet  the  fact  that  the 
authorities  refuse  to  issue  the  same  is  no  protection  to  him,  where 
he  engages  in  the  traffic,  even  though  the  refusal  is  arbitrary, 
as  in  such  a  case  he  has  his  remedy,  ordinarily  by  mandamus  to 
compel  its  issuance.22  Where  it  is  made  unlawful  to  sell  liquors 
without  having  first  procured  from  the  common  council  a  license 
to  do  so,  the  obtaining  of  the  license  is  a  prerequisite  to  the 
exercise  of  any  right  to  engage  in  such  traffic,  and  the  refusal 
to  hear  the  application  and  to  issue  the  license  is  held  to  be  no 
defense  for  selling  liquor  without  a  license.23  And  in  some  cases 
it  is  decided  where  an  ordinance  directs  the  issuance  of  a  license 
upon  the  doing  of  certain  acts  by  an  applicant,  that  the  license 
if  issued  would  only  be  evidence  that  such  party  had  complied 
with  the  requirements  of  the  ordinance,  and  that  a  formal  license 
is  not  necessary  where  there  has  been  the  required  compliance  to 
protect  the  licensee.24 

20.  Welsh  v.  State.  126  Ind.  71,  25  Missouri.— State     v.     Huntley.     2!) 
X.   E.  883,  9   L.  R.  A.  664.  Mo.  App.  278. 

21.  State  v.  Tucker.  45  Ark.  55.  Texas.— Curry    v.    State.    28    Tex. 

22.  Florida.— Roberts  v.   state.  26  App.  477.  13  S.  W.  773. 

Fla.  360,  7   So.  861.  23.  City    of    Montpelier    \.    Mills 

Georgia.— Brock    v.    State.    65    Ga.       171  Ind.  175,  85  N.  E.  6. 

437.  21.   Prather  v.  People,  85  111.  36. 

Illinois.—- Kadgihn      v.  City      of          See  also   State  v.   White.  23   Ark. 

Bloomington,  58  111.  229.  275,  holding  where  it  appeared  that 

Minnesota. — State     v.  Cron,      23      an   applicant    had   complied   with   all 

Minn.    140.      See   Jordan.  City   of   v.       the  requirements  of  the  statute  that 

Bespalec,    86    Minn.    441,  10    N.    W.       though  it   was  not  proper  for  him  to 

1052.  commence     retailing     before     the     li- 


276  OBTAINING  OF  LICENSE  GENEEALLY.     [§§   231,232 

§  231.  Form  of  license  generally. 

Where  the  statute  requires  a  license  to  be  in  writing  there 
must  be  a  compliance  therewith  and  one  cannot  justify  sales  under 
a  parol  license.25  So  where  the  only  license  permitted  is  one 
authorized  by  a  writing  signed  by  certain  officials,  in  which 
writing  the  person  and  place  licensed  are  specified,  the  intangible 
right  involved  in  a  license  can  be  created  in  no  other  way  and  a 
person  who  does  not  have  the  writing  signed  as  required,  in 
which  he  is  licensed  to  sell  does  not  have  a  license  for  the  sale  of 
liquors  and  such  sales  by  him  are  illegal.26 

§  232.  More  than  one  license  may  be  required. 

A  person  may  be  required  to  take  out  a  license  both  from  the 
state  under  a  general  law  and  also  from  the  city  having  the  power 
to  license,  before  he  will  be  authorized  to  engage  in  the  liquor 
traffic,  as  the  delegation  to  a  city  of  the  power  to  license,  tax  and 
regulate  does  not  deprive  the  state  of  its  general  power  to  control 
the  traffic  by  also  requiring  a  compliance  with  the  general  license 


cense  was  issued  the  jury  were  war- 
ranted in  finding  no  criminal  viola- 
tion of  the  statute  in  so  doing. 

25.  Lawrence  v.  Gracy,  11  Johns. 
(X.  Y.)  179.  See  Murphy  v.  Nolan, 
126  Mass.  542,  holding  a  substantial 
compliance  with  the  statute  as  to  the 
form  of  a  license  is  sufficient. 

20.  Connecticut  Breweries  Co.  v. 
Murphy,  81  Conn.  145,  70  Atl.  450. 

So  where  the  statute  requires  that 
the  license  shall  set  forth  "the  build- 
ing in  which  the  business  13  to  be  car- 
ried on  "  a  license  which  sets  forth 
the  name  of  the  street  only  is  defect- 
ive and  will  not  justify  sales  under  it. 
Commonwealth  v.  Merriam,  136  Mass. 
433.  But  see  Goforth  v.  State,  60 
Miss.  74,  holding  that  a  code  provi- 
sion that  a  license  shall  specify  the 
house    in   which    the    business    of    re- 


tailing is  to  be  carried  on,  is  di- 
rectory merely  to  the  officer  issuing 
it. 

So  in  Texas  it  is  decided  under  a 
statute  which  provides  that  "  the  par- 
ticular place  or  house  where  the  liq- 
uor is  to  be  sold  shall  be  designated 
in  the  license  "  that  a  license  which 
designates  the  town  in  which  the  liq- 
uors are  to  be  sold  and  which  fails 
to  designate  the  particular  house  is 
valid.  Green  v.  Southard,  94  Tex. 
470,  61  S.  W.  705;  Pearce  v.  State, 
35  Tex.  Cr.  150,  32  S.  W.  697.  In 
an  early  case  in  North  Carolina  it 
was  held  that  a  statute  requiring  a 
license  to  set  forth  the  one  place  in 
the  county  was  sufficiently  complied 
with  where  the  name  of  the  town  was 
given.  State  v.  Gerhardt,  48  N.  C. 
178. 


§  232] 


OBTAINING   OF  LICENSE   GENERALLY. 


277 


laws  of  the  state.-7  And  under  the  laws  of  a  state  it  may  be 
necessary  to  obtain  both  a  city  and  a  county  license,  and  where 
such  is  the  law  a  license  from  only  one  of  such  authorities  is  not 
;i  protection  to  the  person  so  selling  so  far  as  the  power  of  the 
other  jurisdiction  is  affected.28  But  in  an  early  case  in  Kansas 
it  is  decided  that  where  a  statute  provides  for  the  issuance  of 
licenses  by  both  the  county  and  city  authorities  but  does  not  clearly 
require  that  a  person  shall  procure  more  than  one  license  it  will 
be  construed  as  requiring  one  engaged  in  such  traffic  in  a  city 
to  obtain  a  city  license  and  one  engaging  in  business  outside  of 
a  city  to  obtain  a  county  license.29  And  it  has  been  decided  where 
a  city  is  empowered  to  exact  the  payment  of  a  license  fee  that 
having  once  determined  the  sum  to  be  paid  and  having  issued  a 
license  and  received  the  money  therefor  it  cannot  exact  an  addi- 


27.  Alabama. — Davis  v.  State,  4 
Stew.  &  P.   (Ala.)   83. 

Georgia. — Decker  v.  McGowan,  59 
Ga.  805. 

Kentucky. — Freeman  v.  Common- 
wealth, 8  Bush    (Ky.)    139. 

Louisiana. — State  v.  McAdams,  106 
La.  720,  31  So.  187. 

Missouri.— State  v.  Millard,  30  Mo. 
App.   251. 

\  <  •  Fork. — Furman  v.  Knapp,  19 
Johns.    (X.   V.)    248. 

The  grant  of  a  license  by  one  juris- 
diction  does  not  authorize  the  person 
to  whom  it  is  granted  to  violate  the 
law  of  another  jurisdiction.  In  im- 
posing 'iie  restriction  there  is  neither 
an  express  nor  an  implied  understand- 
ing thai  no  other  jurisdiction  shall 
refrain  from  imposing  a  restriction, 
in  the  form  of  a  license,  upon  those 
engaged  in  selling  intoxicating  liq- 
uors. Lutz  v.  City  of  Crawfords- 
ville.  109  Ind.  AM.  10  X.  E.  411.  Per 
Flliott.  C.  J. 

28.  M«Ua ma.— State  v.  Estabrook, 
li  Ala.  653. 


California. — In  re  Lawrence,  69 
Cal.  608,  11  Pac.  217. 

Colorado. — People  v.  Raims,  20 
Colo.  489,  39  Pac.  341 ;  citing  Heins- 
sen  v.  State,  14  Colo.  228,  23  Pac. 
995. 

Georgia. — Mayor  v.  Conly,  32  Ga. 
211. 

Indiana. — Wagner  v.  Town  of 
Garrett,  118  Ind.  114.  20  X.  E.  706. 

Kentucky. — Commonwealth  v.  Hel- 
back,  101  Ky.   167,  40  S.  \V.  245. 

Louisiana. — Benefield  v.  Hines,  13 
La.  Ann.   420. 

Minnesota. — State  v.  Cron,  23 
Minn.  140. 

Missouri. — State  v.  Harper;  ">s  Mo. 
531. 

North  Carolina. — State  v.  Propst, 
87  N.  C.  560. 

South  Carolina. — State  v.  Mancke. 
18  S.  C.  81. 

Wyoming. — State  v.  City  Council.  7 
Wyo.  417,  52  Pac.  !i7f).  40  L.  R.  A. 
710. 

20.  state  v.  Pittman.  10  Kan.  593. 


078  OBTAINING   OF   LICENSE   GENERALLY.  [§   233 

tional  amount  and  require  the  licensee  to  take  out  a  second  license 
covering  the  same  period.80 

§  233.  More   than  one  license — liquor  sold  in  connection  with 
other  business. 

The  liquor  traffic  though  conducted  in  connection  with  an- 
other business  is  nevertheless  considered  as  a  distinct  one  for  the 
purposes  of  taxation.31  So  though  a  city  may  have  sole  and 
exclusive  power  to  license,  tax  and  regulate  dram  shops  and 
tippling  houses,  a  merchant  who  sell  liquors  in  connection  with 
his  business  is  not  excused  by  the  fact  of  his  having  a  city  license 
from  complying  with  such-  a  state  law.32  And  a  separate  license 
may  be  required  of  one  who  carries  on  the  business  of  selling 
liquors  in  connection  with  a  confectionery  business.33  And  it 
is  said  to  be  common  knowledge  that  the  business  of  selling  liquor 
is  not  such  a  customarily  inseparable  and  necessary  part  of  the 
business  of  a  wholesale  grocer  that  legislation  cannot  separate 
them  when  united  and  tax  them  separately.34  Again  one  may  be 
required  to  pay  for  both  a  wholesale  and  retail  license  where  he 
is  both  a  wholesale  and  retail  dealer.35  And  where  a  statute 
provides  for  a  license  for  different  classes  of  traffickers  in  liquors, 
such  as  a  trader's  license  for  sale  of  quantities  in  not  less  than 
a  pint,  and  an  eating-house  license  for  sales  in  quantities  less 
than  a  pint,  the  law  will  not  be  construed  as  intending  that  a 
person  paying  for  a  license  for  one  class  shall  enjoy  the  privileges 
coferred  upon  the  other  class  without  the  payment  of  the  license 
required  for  such  sales.36     But  where  a  statute  provides  that  a 

30.  Ex  parte  Schmitker,  6  Neb.  33.  City  of  New  Orleans  v.  Jane, 
108.  34  La.  Ann.  667. 

31.  City  of  Mobile  y.  Richards  &  34.  City  of  Mobile  v.  Richards  & 
Sons,  08  Ala.  594,  12  So.  793;  Burch  Sons,  OS  Ala.  594,   12   So.  793. 

v.     Mayor,    42    Ga.     596;     Kelly    v.  35.  Flournoy  v.  Grady,  25  La.  Ajm. 

Buyer,"  7  Lea    (Tenn.)    180.  591. 

32.  State  v.   Millard,   39  Mo.   App.  36.  State  v.  Cahen,   35  Md.  236. 
251. 


<   L»:»l]  OBTAINING  OF  LICENSE   GENERALLY.  279 

merchant  may  sell  at  his  storehouse  liquors  in  quantities  less 
than  a  quart  upon  obtaining  a  license  it  has  been  decided  that 
before  one  is  required  to  obtain  a  license  to  so  sell  whiskey  he 
must  be  engaged  in  merchandising  and  in  the  sale  of  other  things 
than  spirituous  liquors.37 

§  234.  Licenses  for  hotels,  and  taverns. 

By  statute  a  hotel  keeper  or  a  tavern  keeper  may  be  required 
to  take  out  a  license  to  sell  liquors  in  connection  with  the  keeping 
of  such  hotel  or  tavern.38  And  the  signing  of  the  application  by 
a  certain  number  of  freeholders  for  a  license  to  sell  liquors,  in 
connection  with  the  hotel  or  inn  business  is  in  some  cases  neces- 


37.  Commonwealth  v.  Wheeler,  79 
Ky.    284. 

38.  Page  v.  State,  11  Ala.  849; 
Beaswell  v.  Commonwealth,  5  Bush 
(Ky.)  544;  Savier  v.  Chipman,  1 
Mich.  116;  Matter  of  Ryon,  85  App. 
Div.  (N.  Y.)  021,  83  N.  Y.  Supp. 
123 ;  Overseers  of  Poor  v.  Warner,  3 
Hill.    (N.   Y.)    150. 

Word  "  tavern "  construed. — 
The  word  "  tavern  "  as  used  in  a  li- 
censing  act  will  where  such  appears 
to  be  the  intention  of  the  legislature 
be  construed  as  applying  to  and  coin- 
prehending  all  hotels  and  houses  that 
entertain  and  accommodate  the  pub- 
lic for  compensation.  St.  Louis  v. 
Siegrist,  46  Mo.  :>!>:?. 

The  question  whether  a  build- 
ing in  the  city  of  New  York 
conies  within  the  definition  of  a  hotel 
so  as  to  entitle  the  owner  to  a  liquor 
tax  certificate  i-  i"  be  determined  by 
the  rovisions  (§  31)  of  the  Liquor 
T>\  Law  and  not  by  the  definition  of 
a  Intel  as  given  in  the  Building  Code 
of  the  city.  Matter  of  Clement,  129 
App.  Div.  (N.  Y.)  229,  113  X.  V. 
Supp.  392,  holding  that  when  such  a 
building  in  the  city  of  New  York  con- 


tains at  least  ten  bedrooms  above  the 
basement,  exclusive  of  those  occupied 
by  the  family  and  servants,  as  re- 
quired by  section  31  of  the  Liquor  Tax 
Law,  and  complies  with  the  other  re- 
quirements of  the  section  the  owner  is 
entitled  to  a  certificate  although  it 
does  not  come  within  section  10  of  the 
Municipal  Building  Code  which  de- 
fines a  hotel  as  a  building  having 
more  than  fifteen  sleeping  rooms 
above  the  first  story. 

Right  to  refuse  license  to  sell 
in  restaurants. — In  California  it 
has  been  decided  that  it  i<  within 
the  lawful  power  of  the  police  com- 
missioners  of  San  Francisco  to  with- 
hold from  restaurant  keepers  a  license 
to  sell  liquors  at  retail  in  their  restau- 
rants no  matter  how  great  the  pecun- 
iary los^  caused  to  their  business  and 
thai  it  is  lawful  fin-  any  person,  by 
legitimate  persuasion  or  argument, 
to  endeavor  t>>  prevail  upon  commis- 
sioners tn  refuse  a  license  although 
such  person  was  actuated  by  a  malici- 
ous intent  to  injure  the  restaurant 
keepers  and  cause  them  pecuniary 
In—.  People  v.  Schmitz,  7  CaL  App. 
330,  94  Pac.  4(i7.  419. 


280 


OBTAINING   OF   LICENSE   GENERALLY. 


[§  235 

sary  to  confer  jurisdiction  on  the  court  to  grant  such  license.39 
And  statutes  have  in  some  states  been  passed  making  the  right 
of  an  applicant  for  a  license  in  connection  with  a  hotel  or  tavern 
dependant  on  the  applicant  having  the  necessary  accommodations 
for  guests.40  An  act,  however,  providing  for  the  obtaining  of  a 
license  by  a  tavern  keeper  may  be  of  such  a  character  as  to  permit 
one  who  has  obtained  such  a  license  to  sell  liquors  without  ob- 
taining an  additional  license.41  And  though  a  corporation  formed 
to  establish  and  maintain  a  hotel  may  be  granted  a  license, 
one  will  not  be  issued  where  its  property  is  in  the  hands  of  a 
receiver.42 


§  235.  To  whom  lisense  may  issue — corporations. 

The  words  "  person  or  persons  "  have  been  construed  to  mean 
corporations  within  the  meaning  of  a  law  providing  for  the  grant- 
ing of  licenses.43     So  under  a  statute  authorizing  the  county  com- 


39.  Amerman  v.  Hill,  52  N.  J.  L. 
326,   19  Atl.   789. 

40.  People  v.  Hartman,  10  .Hun 
(N.  Y.),  602. 

41.  Hirn  v.  State,   1   Ohio  St.   15. 

42.  Cambridge  Spring's  Co.  Li- 
cense, 20  Pa.  Co.  Ct.  564. 

43.  Gulf  Brewing  Co's.  License,  11 
Pa.  Co.  Ct.  R.  346. 

A  domestic  corporation  is  a 
resident  citizen  to  whom  license 
may  be  granted.  "  The  residence  of 
a  corporation  is  created  for  it  by 
act  of  law,  and  cannot  be  changed  by 
act  of  the  corporation.  A  more  per- 
manent residence  than  that  of  a  do- 
mestic corporation  in  the  state  which 
creates  it  can  hardly  be  conceived." 
Greenough  v.  Board  of  Police 
Comm'rs  of  Tiverton  (R.  I.  1909), 
74  Atl.  7s.-,.     Per   Dubois,  C.  J. 

Where  by  statute  "  person  "  in- 
eludes  a  corporation  or  license  to  sell 
liquor  will   be  granted  to  a  corpora- 


tion. In  re  D.  W.  Lynch  Co.  (Del. 
1909),  75  Atl.  41. 

A  dramshop  license  may  be  issued 
to  a  corporation  where  it  is  provided 
by  statute  that  the  word  "  person  " 
or  "  persons  "  as  well  as  all  words  re- 
ferring to  or  importing  persons  may 
extend  and  be  applied  to  bodies  politic 
and  corporate  as  well  as  individuals. 
People  v.  Heidelberg  Garden  Co.,  233 
111.  290,  84  N.  E.  230. 

In  Nebraska  a  license  may  be 
granted  to  a  corporation  to  vend  in- 
toxicating liquors  at  wholsesale  but 
no  such  authority  exists  for  licens- 
ing a  corporation  to  engage  in  the 
retail  traffic.  In  re  Hastings  Brew- 
ing Co.    (Neb.   1908),  119  N.  W.  27. 

Though  a  brewing  corpora- 
tion cannot  be  licensed  to  keep 
a  dramshop  it  is  not  unlawful  for 
such  a  corporation  to  lease  premises 
for  the  purpose  of  having  its  beer 
sold    in    them.      Conservative    Realtv 


§   230]  OBTAINING   OF  LICENSE   GENERALLY.  281 

missioners  to  license  in  writing  suitable  "persons"  to  sell  in- 
toxicating liquors,  a  corporation  may  be  licensed.44  And  a  rail- 
road company  with  power  under  its  charter  to  purchase  railway 
cars  with  all  convenient  appendages  and  supplies  for  persons 
traveling  therein  may  under  a  license  to  sell  intoxicating  liquors 
furnish  the  same  to  persons  traveling  in  its  cars.45  In  Penn- 
sylvania it  is  decided  that  a  corporation  authorized  by  the  laws 
of  that  state  to  engage  in  the  brewing  business  may  be  granted 
a  license  to  sell  its  product  as  a  wholesale  dealer  at  a  location  not 
the  place  of  manufacture  and  this  despite  the  fact  that  it  may 
have  a  similar  license  in  another  county.46  Again  a  statute 
providing  that  any  corporation  chartered  and  organized  as  a 
bona  fide  social  club  may  upon  payment  of  the  tax  stated  dis- 
tribute intoxicating  liquors  among  its  members  is  a  general  law 
and  not  within  the  meaning  of  a  constitutional  provision  for- 
bidding the  legislature  to  pass  special  laws.47 

§  236.  To  whom  license  may  issue — foreign  corporations. 

A  foreign  corporation  may,  it  is  decided,  engage  in  the  liquor 
business  upon  procuring  the  necessary  license,  to  which  they  are 
entitled  in  the  absence  of  a  statutory  inhibition.48  And  a  brewing 
company  in  one  state  which  keeps  beer  in  storage  in  a  city  in 
another  state,  and  through  its  agents  delivers  the  same  to  its  cus- 
tomers in  the  city  from  time  to  time,  perfects  and  completes  the 
sale  in  the  city  and  becomes  subject  to  its  license  laws.49  But  in 
Pennsylvania  it  is  held  that  a  foreign  corporation  is  not  a  citizen 


Co.    v.    St.    Louis    Brew.    Ass'n.,    133  47.  Norfolk    v.    Board   of   Trade   & 

Mo.  App.  261,  113  S.  W.  229.  Business   Mens*  Assn.,   109  Ya.   353, 

44.  Connecticul     Breweries    Co.    v.  63  S.  E.  987. 

Murphy.  81  Conn.  145,  70  Atl.  450.  See  chapter  post  herein  as  to  sales 

45.  People  v.  Pullman  Car  Co.,  175  by  social  clubs. 

Til.   126.   51   N.   E.   664,   64    L.    R.   A.  48.  Enterprise      Brewing     Co.      v. 

366.  Grime,   L73  Mass.  252,  53  X.   E.  855. 

46.  Brewing  Company's  License,  14  <!».  Jung  Brewing  Co.  v.  Frankfort, 
Ta.   Super.   Ct.    188.  100  Ky.    109,  38  S.  W.  710. 


2S2  OBTAINING  OF  LICENSE  GENERALLY.     [§§   237,238,239 

of  the  state  within  the  meaning  of  the  constitution  and  that  there 
is  no  abuse  of  discretion  in  refusing  a  license.50 

§  237.  To  whom  license  may  issue— partners. 

A  partnership  may  be  granted  a  license.51  But  a  provision 
of  a  city  charter  that  but  one  license  shall  be  required  for  partners 
trading,  or  business  done  under  firm  name,  merely  authorizes  a 
license  to  partnership  and  does  not  operate  to  exempt  one  from 
license  as  a  wholesale  dealer  who  has  procured  license  as  a  retail 
dealer.52  And  under  a  statute  providing  that  a  license  may  be 
granted  to  "  a  law-abiding,  assessed,  taxpaying  male  citizen 
above  twenty-one  years  of  age  "  it  is  held  that  a  partnership  is 
not  entitled  to  a  license.53 

§  238.  To  whom  license  may  issue — women. 

A  woman  being  prohibited  by  statute  from  engaging  in  the 
liquor  traffic  commits  an  unlawful  act  if  she  engages  therein.54 
But  the  liquor  business  being  made  lawful  by  statute,  and  there 
being  no  prohibition  against  women  engaging  in  it,  a  woman  is 
entitled  to  conduct  such  a  business  upon  a  compliance  with  the 
provisions  of  the  law.55 

§  239.  Removal  permits — application  for. 

A  removal  permit  need  not  be  treated  as  if  it  were  a  renewal 
license  by  the  court  as  the  latter  grants  to  the  same  person,  the 
same  privilege  at  the  same  place  while  the  former  allows  a  license 
to  sell  at  a  different  place  which  may  be  unsuitable.50  Therefore 
under  a  statute  providing  that  an  application  for  a  license  may 

60.  Schoenhofen   Brewing  Go's.   Li-       020,  70  S.  W.  736. 
cense,  8   Pa.   Super.  Ct.   141.  54.  Woodford  v.  Hamilton,  139  Ind. 

51.  State      v.      Monitean      County       481,   39   N.  E.  47. 

Court,    45    Mo.    App.    387.  55.  Amperse  v.  City  of  Kalamazoo, 

52.  Mobile    v.     Phillips,     146    Ala.       59  Mich.  78,  20  N.  W.  222,  409. 
158,  40  So.  826.  56.  Bohrmann's    Appeal,    81    Conn. 

•"•:'••  State    v.    Scott,    96    Mo.    App.       458,   71   Atl.   502. 


§   240]  OBTAINING  OF  LICENSE   GENERALLY.  ;»*:> 

be  denied  when  it  appears  that  there  already  exists  a  sufficient 
number  of  licensed  places  in  the  vicinity  an  application  for  a 
removal  permit  may  be  treated  as  an  original  application  for  a 
license  when  the  result  would  be  to  unduly  increase  the  number 
of  saloons  in  a  particular  locality.57 

§  240.  Applicant  must  possess  requirements — fitness. 

An  applicant  must  show  he  possess  the  requirements  called 
for  by  statute  and  the  existence  of  facts  bringing  him  within 
the  statute.58      But  unfitness  to  be   entrusted   with   a   license  is 


B7.  Bohrmann's  Appeal,  81  Conn. 
458,  71   Atl.  502. 

08.  Castle  v.  Bell,  145  Ind.  8,  44 
N.  E.  2;  Hill  v.  Perry,  82  Ind.  28; 
Hodges  v.  Metcalfe  County  Court,  25 
Ky.  Law  Rep.  1553,  78  S.  W.  177; 
Application  of  Smith,  12G  Iowa  128, 
101  N.  W.  875. 

Where  it  is  provided  by  stat- 
ute  that  license  to  merchants, 
druggists  or  distillers  shall  only 
be  granted  upon  satisfactory  evidence 
that  the  applicant  is  in  good  faith  a 
merchant,  druggist  or  distiller  the 
burden  of  showing  that  he  is  such 
rests  upon  the  applicant.  Hodges  v. 
Metcalfe  County  Court,  117  Ky.  619, 
78  S.  W.  177,  460. 

Fitness  of  a  corporation. — In 
a  recent  case  in  Pennsylvania  it  is 
said  in  this  connection  "  In  deter- 
mining the  fitness  of  a  natural  per- 
son and  of  a  corporation  very  differ- 
ent questions  arise.  In  the  case  of 
an  individual  the  qualities  of  the 
man,  such  as  moral  character,  tem- 
perate habits,  business  integrity, 
citizenship,  and  other  kindred  mat- 
ters are  the  important  and  frequently 
the  controlling  considerations  with 
the  court.  With  corporations  the 
inquiry  is  different.  A  corporation 
has  no  personal  attributes,  and  must 
be     judged     by     its     corporate     acts. 


*  *  *  Of  course  a  corporation  made 
fit  by  the  act  of  incorporation  to  en- 
gage in  the  manufacture  and  sale  of 
liquor  may  become  unfit  within  the 
meaning  of  the  license  laws  by  corpo- 
rate acts  committed  in  violation  of 
law  by  its  directors,  officers,  and  au- 
thorized agents.  In  this  sense  the 
fitness  of  a  corporation  presenting 
an  application  for  a  license  may  be 
inquired  into.  *  *  *  The  only  method 
of  establishing  the  unfitness  of  a 
corporation  is  to  show  that  in  the 
conduct  or  management  of  its  busi- 
ness it  has  been  guilty  of  violating 
the  law.  It  is  clear  therefore  that 
in  the  hearing  of  such  an  application, 
numerously  signed  petitions  or  remon- 
strances by  persons  wit  limit  knowl- 
edge of  any  unlawful  act  or  acts 
having  been  committed  should  have 
no  weight  in  determining  whether  the 
applicant  had  been  quilty  of  violat- 
ing the  law."  In  re  Indian  Brewing 
Co.'s  License  I  Pa.  S.  < !.  1909),  75 
Atl.  29.     Per  Elkin,  J. 

"Where  an  application  for  a 
hrewer's  license  is  made  in  Penn- 
sylvania the  sole  question  is  that  of 
the  applicant's  fitness.  In  ,v  Indian 
Brewing  I  lo.'s  Li©  use  ( Pa.  S.  C. 
1909),  75  Atl.  29. 

Statutes  not  conferring  arbi- 
trary   power. — It    has   been    decided 


284 


OBTAINING   OF   LICENSE   GENERALLY. 


[§  241 


not  shown  by  the  fact  that  the  bond  given  to  procure  it  and  ac- 
cepted in  good  faith  and  approved,  was  invalid  owing  to  the 
failure  of  the  principal  to  sign  the  same.59  And  an  ex-officio 
head  of  police  or  an  alderman  has  been  held  not  to  be  a  police 
official  within  the  meaning  of  a  statute  forbidding  police  offi- 
cials from  being  interested  in  the  manufacture  or  sale  of  spirit- 
uous liquors.60 

§  241.  As  to  character  of  applicant. 

The  good  moral  character  or  standing  is  in  some  states  made 
a  requisite  to  the  granting  of  a  license  and  ordinarily  this  ques- 
tion is  one  for  the  licensing  authorities  to  determine  in  the  exercise 
of  their  discretion.01  And  the  moral  character  of  an  applicant 
being  directly  put  in  issue  by  the  statute,  it  is  decided  that  an 
applicant  must  prove  by  a  preponderance  of  evidence  that  he  is 


that  a  law  which  confers  on  county 
commissioners  the  right  to  grant  or 
refuse  permission  to  carry  on  other 
business  in  the  same  room  where  in- 
toxicating liquors  are  sold  when  con- 
strued with  another  act  which  makes 
the  granting  of  such  permission  de- 
pend on  the  personal  fitness  of  such 
applicant  is  not  open  to  the  objection 
that  it  confers  absolute  and  arbi- 
trary power  upon  the  comissioners. 
State  v.  Gerhardt,  145  Ind.  439,  44 
X.  E.  4G9,  33  L.  R.  A.  313. 

Calling  -witnesses  as  to  fit- 
ness of  applicant.— The  rule  seems 
to  be  recognized  in  Indiana  of  the 
power  of  the  board  of  commissioners 
or  the  court  on  appeal,  in  an  ex  parte 
proceeding  to  secure  a  license,  to  call 
on  its  own  motion  some  particular 
witness  or  witnesses  and  examine 
them,  or  cause  them  to  be  examined, 
in  regard  to  the  fitness  of  the  appli- 
cant to  be  intrusted  under  the  law 
with  a  license.     State  v.  Gorman,  171 


Ind.  58,  85  N.  E.  763. 

Question  is   one   for  jury. — The 

question  of  the  fitness  of  an  appli- 
cant is  one  of  fact  for  the  jury  on 
appeal  and  not  one  of  law  for  the 
court.  Keiser  v.  Lines,  57  Ind.  431 ; 
See  also  Pelley  v.  Wills,  141  Ind. 
688,  41  N.  E.  354. 

59.  North  v.  Barringer,  147  Ind. 
224,  46  N.  E.  531. 

60.  People  v.  Gregg,  59  Hun 
(N.  Y.)  107,  13  N.  Y.  Supp.  114; 
People  v.  Hannon,  5 i  Hun  (N.  Y.) 
617,  13  N.  Y.  Supp.  117. 

61.  Ouachita  County  v.  Rolland,  60 
Ark.   516,   31   S.  W.   144. 

What  record  should  show.— 
Where  a  circuit  court  grants  a  li- 
cense it  is  held  in  Missouri  that  the 
record  should  show  that  the  appli- 
cant possessed  the  qualifications  re- 
quired by  law,  these  being  essential 
to  confer  jurisdiction.  State  v. 
County  Court,  66  Mo.  App.  96. 


§  241] 


OBTAINING    OF    LICENSE   GENERALLY. 


285 


a  fit  person  to  be  entrusted  with  a  license.82  And  where  the  ap- 
plication shows  that  the  applicant  is  qoI  a  propel  person,  by  reason 

of  his  past  conduct  of  the  business,  to  grant  a  license  to,  such 
license  is  properly  refused.63  The  question  of  an  applicant's 
unfitness  is  to  be  determined  in  each  case  by  the  licensing  board 
in  the  exercise  of  its  best  judgment  and  though  the  action  may 
be  illegal  when  taken  arbitrarily,  yet  it  is  not  illegal  from  the 
fact  alone  that  another  tribunal  might  reach  a  different  con- 
clusion.64 So  when  the  alleged  respectable  character  and  stand- 
ing of  an  applicant  for  a  liquor  license  is  denied,  it  is  the 
duty  of  the  licensing  board  to  consider  the  acts  or  crimes 
which  the  evidence  attributes  to  the  applicant,  and  from  these 
indices  to  his  character  determine  whether  he  is  a  proper  person 
to  receive  a  license.65     And  the  character   and  standing  of  an 


62.  Chandler  v.  Ruebelt,  83  Ind. 
139;  citing  Goodwin  v.  Smith,  72 
Ind.   113,   37  Am.  Rep.   113n. 

Effect  of  averment  in  protest 
as  to  unfitness. — An  averment  in 
the  protest  or  remonstrance  to  the 
effect  that  the  applicant  is  not  a 
suitable  person  to  be  entrusted  with 
the  sale  of  intoxicating  liquors,  is, 
in  the  absence  of  a  motion  to  make 
more  specific  and  certain  sufficient  to 
question  the  character  and  standing 
of  the  petitioner,  and  require  proof  by 
him  to  show  that  he  is  a  person  of 
respectable  character  and  standing. 
Wat  kin-,  v.  Grieser,  11  Okla.  302,  66 
Pac.  332. 

<t:i.  Bronson  v.  Dunn.  124  Ind. 
252,  24  X.  E.  7l!».  See  State  v.  Kaso, 
2.-,  Neb.  607,  11  X.  W.  558.  Com- 
pare Babb's  License,  2  Pa.  Super.  Ct. 
38,  as  (i>  ;in  occasional   violation. 

Where  a  petition  for  a  license 
does  not  aver  that  the  applicant 
is  of  good  moral  cbaracter  and  of 
temperate  habits,  it  may  be  dis- 
missed upon  thai  ground    although  he 


has  formally  joined  issue  upon  a  re- 
monstrance which  denies  his  good 
moral  character  upon  information, 
and  at  the  hearing  has  offered  wit- 
nesses to  prove  both  moral  character 
and  temperate  habits.  Wheelin's  Pe- 
tition,  134  Pa.   St.   554,   19   Atl.   7.").-). 

64.  Smith's  Appeal,  65  Conn.  135, 
31   Atl.  529. 

«•"»•  Bolton  v.  Hegner,  82  Neb.  772. 
118  X.  W.  1096.  The  court  said: 
"  It  is  the  purpose  of  our  law  to  pre- 
vent persons  who  are  not  of  respecta- 
ble character  and  standing  from  ob- 
taining a  liquor  license.  When  this 
question  is  at  issue,  a  licensing  board 
should  make  diligent  inquiry.  They 
are  not  limited  to  the  general  reputa- 
tion of  (be  applicants  but  must  take 
into  consideration  whatever  ignoble 
nets  or  crimes  the  evidence  may  at- 
tribute to  them.  The  licensing  au- 
thorities mii-1  determine  whether  the 
acts  and  conducl  shown  as  indices 
to  his  character  are  sufficient  to  dis- 
qualify the  applicant."  Per  Effer- 
Bon.  C. 


286  OBTAINING   OF   LICENSE   GENERALLY.  [§   242 

applicant  being  material  facts  to  be  shown  in  order  to  entitle 
him  to  a  license,  it  is  proper  to  show  as  affecting  his  character 
and  standing  specific  acts  of  criminality  or  immorality.66  So 
one  who  is  frequently  under  the  influence  of  intoxicating  drinks 
and  who  during  the  preceding  year  permitted  gambling  in  his 
place  of  business  is  not  a  man  of  respectable  character  and  stand- 
ing within  the  meaning  of  the  statute,  and  therefore  not  entitled 
to  a  license  to  permit  him  to  sell  such  liquors.67  But  occasional 
indulgence  in  intoxicating  liquor  is  not  such  immorality  or  un- 
fitness as  precludes  an  applicant  from  obtaining  a  license,  nor 
is  evidence  of  intoxication  in  the  remote  past.66  And  a  person 
convicted  of  a  felony  several  years  prior  to  his  application  and 
who  was  subsequently  pardoned  and  thus  restored  to  all  civil 
rights  is  not  a  convict  under  the  ban  of  the  law  and  should  not 
be  refused  a  certificate  solely  on  that  reason.69 

§  242.  As  to  the  petition  or  application. 

In  many  states  an  applicant  for  a  license  must  present  a 
written  application  or  petition,  and  where  this  is  required  it  is 
a  prerequisite  to  the  exercise  of  jurisdiction  to  issue  a  license,70 

Where   by    remonstrance    it    is  70.  State  v.  Higgins,  84  Mo.  App. 

denied  that  an  applicant  for  a  license  531.      See    Barnard    v.    Graham,    120 

is  a  man  of  good  standing  and  char-  Ind.    135,   22   N.    E.    112;    Matter   of 

acter  it  is  the  duty  of  the  licensing  Ryon,  85  App.  Div.    (N.  Y.)    621,  83 

board   to    see  that   he   is   of   the   re-  N.  Y.  Supp.  123;   State  v.  Newcomb, 

quired  character  and  standing  before  107  N.  C.  900,   12   S.  E.  53. 

issuing   the   license   and   they   should  In  Indiana  it  has  been  decided  that 

not  indulge  the  presumption  that  he  an   application   under   the   statute   to 

is  such.     Batten  v.  Klamm,  82  Neb.  sell  intoxicating  liquors  is  a  statutory 

379,  117  N.  W.  991.  civil  proceeding  and  that  in  the  de- 

66.  Watkins   v.    Grieser,    11    Okla.  termination  of  the  questions  therein 

302,  66  Pac.  332.  involved  the  board  of  commissioners, 

<J7.  Woods  v.  Garvey,  82  Neb.  776,  either    with    or    without    a    remon- 

118  N.  W.  1114.  strance,  acts  judicially  and  does  not 

68.  Colder    v.    Sheppard,    61    Ind.  act  or   serve   in   the  capacity   of   an 

219.     See   also   Lynch   v.   Bates,   139  agent  of  the  state.     State  v.  Gorman 

Ind.  206,  38  N.  E.  806.  171  Ind.  58,  85  N.  E.  763;   Bryan  v. 

«9.  People  v.  Sackett,  17  Misc.  R.  De  Moss,  34  Ind.  App.  473,  73  N.  E. 

(N.  Y.)   405,  40  N.  Y.  Supp.  413.  156. 


g   L»4;i]  OBTAINING   OF   LICENSE  GENERALLY.  js7 

and  a  grant  of  a  license  without  the  petition  required  by  statute 
is  of  no  effect.71  The  petition  for  a  license  should  allege  the 
requirements  which  the  statute  provides  it  shall  contain.72  So 
where  required  by  statute  petitions  should  set  forth  the  names 
of  a  certain  number  of  freeholders  who  will  lx-rome  sureties  for 
the  petitioner,  and  that  they  are  the  owners  of  rea]  estate  of  a 
certain  value.73  And  though  all  the  jurisdictional  facts  to  au- 
thorize the  granting  of  a  license  should  appear  on  the  face  of  the 
proceedings,74  yet  where  the  application  recites  the  facts  essen- 
tial to  confer  jurisdiction  such  application  being  a  part  of  the 
record  of  the  court,  this  is  held  to  be  sufficient.75 

§  243.  Time  of  filing  petition. 

In  some  states  the  petition  must  be  on  file  a  certain  length  of 
time  before  the  excise  commissioners  can  act.70  And  where  a 
statute  requires  that  a  petition  shall  be  on  file  with  a  certain 
official  for  a  specified  number  of  days  before  action  is  taken  upon 
it,  there  is  no  authority  to  grant  a  license  before  the  expiration 
of  the  time  stated,  and  one  granted  prior  to  such  time  is  void.77 
That  a  petition  for  a  liquor  license  was  properly  filed  at  a  certain 
date  is  sufficiently  shown  by  the  record  where  it  appears  there- 
Refusal  to  grant  as  a  bar  to  72.  McCrcary  v.  Rhodes,  63  Miss. 
application. — The  refusal  to  grant  308 ;  Corbett  v.  Duncan,  63  Miss. 
a  liquor  license,  upon  the  ground  that       85. 

there  were  already  saloons  enough  in  The  blanks  in  a  petition  should 

that   locality,  is  held  under  the  Con-       be  filled  out.      State  v.   Tullock,   108 
necticut  statute  to  be  in  fact  and  in       Mo.  App.  32,  82  S.  W.  645. 
law   a    determination    that    the   place  73.  Bailey,    Nease    &    Xester's    Li- 

is  "unsuitable"   for  the  sale  of   liq-       censes,  5  Pa.  Dist.  R.  172. 
uors  and  therefore  operates  as  a  bar  7  1.  state   v.    Seibert,   97   Mo.    App. 

to  a  second  application  for  the  same  212,  71  S.  W.  05:  State  v.  Heege,  37 
place   during   the   same   license   year.       Mo.    App.    338. 

the     statutory     prohibition     in     such  75.  State      v.      Mointeau      County 

cases     being    held    to    be     absolute.       Court.  45  Mo.  App.  387. 
D'Amato's  Appeal,  80  Conn.  357,  G8  7C.  State  v.   Seibert,  97   Mo.  App. 

Atl.  445.  212.  71   S.   W.  95. 

71.  City    of    Eureka    v.    Davis,    21  77.  Cooper  v.  Hunt,  103  Mo.  App. 

Kan.  578;   House  v.  State,  41   Miss.       9.  77  S.  YV.  483. 
737. 


28S 


OBTAINING   OF   LICENSE   GENERALLY. 


[§  244 


from  that  it  must  have  been  on  file  at  that  time,  though  there  was 
an  omission  to  note  the  filing  on  the  back  of  the  paper.78 

§  244.  Petition — description  and  location  of  premises. 

In  many  states,  under  the  statutes  in  force,  the  application 
should  contain  a  description  of  the  premises  or  the  exact  location 
of  the  same.79     The  object  of  such  a  statute  is  to  give  the  public 


78.  State  v.  Leonard  (Kans.  City 
C.  A.  1909),  116  S.  W.  14. 

79.  Barnard  v.  Graham,  120  Ind. 
135,  22  N.  E.  112;  Tanner  v.  Bugg, 
74  Mo.  App.  19G;  Waugh  v.  Graham, 
47  Neb.  153,  66  N.  W.  301 ;  Orcutt  v. 
Reingardt,  46  N.  J.  L.  337 ;  Walker's 
License,   24   Pa.    Super.   Ct.   90. 

Particular  description  denned. 
— A  particular  description  of  the 
premises  is  held  to  mean  only  a  de- 
scription so  reasonably  full  and  cer- 
tain as  to  point  out  the  exact  loca- 
tion of  the  premises.  Murphy  v. 
Board  of  Commissioners,  73  Ind. 
483. 

"  Precise  location  of  prem- 
ises "  sufficiency  of  statement  of  ap- 
plication for  a  license.  In  re  Burns 
(Ind.  1909),  87  N.  E.  1028;  Hunkel 
v.  Abell,  170  Ind.  305,  84  N.  E.  503. 

Where  a  statute  requires  a 
statement  of  the  "  specific  loca- 
tion on  the  premises  "  of  the  bar 
or  place  at  which  liquors  are  to  be 
sold,  a  statement  of  the  applicant, 
in  compliance  with  this  requirement 
that  it  was  to  be  in  the  front  room  on 
the  ground  floor  will  not  be  con- 
strued as  referring  to  a  single  and 
isolated  room  afterward  pried  away 
i  the  building  and  moved  to  an- 
other part  of  the  lot,  so  as  to  au- 
ize  liim  to  sell  in  such  room. 
Matter  of  Flanagan,  49  App.  Div. 
(N.  Y.)    99,  63  N.  Y.  Supp.   531. 

Description  of  room. — In  an  ap- 
plication  in   Indiana   for  a   liquor   li- 


cense the  description  of  the  room  in 
which  the  sales  are  to  be  made  must 
be  specified  and  definite.  Kunkel  v. 
Abell,   170  Ind.   305,  84  N.  E.  503. 

Building  described  not  erect- 
ed.— The  fact  that  the  building  de- 
scribed in  an  application  for  a  li- 
cense was  not  erected  at  the  time  of 
the  publication  of  the  notice  is  held 
not  to  defeat  the  issuance  of  the  li- 
cense, where  the  application  stated 
the  exact  location  of  the  premises  in 
which  the  applicant  desired  to  sell. 
Moran  v.  Creagan,  27  Ind.  App.  659, 
62  N.  E.  61. 

But  in  Massachusetts  it  has  been 
held  that  where  by  statute  the  ap- 
plication for  a  license  should  con- 
tain a  partcular  description  of  the 
premises  on  which  the  license  is  to 
be  exercised  a  description  of  the  build- 
ing as  one  about  to  be  erected  is  not 
sufficient  to  authorize  the  issuance  of 
a  license.  Cheney  v.  Coughlin,  201 
Mass.  204,  87  N.  E.  744. 

Sufficiency  of  description — in- 
stances.— It  has  been  held  insuffi- 
cient under  a  statute  requiring  a  de- 
scription of  the  room  to  describe  the 
premises  as  "the  lower  floor  of  the 
front  room  of  the  two  story  brick 
building"  situated  on  a  certain  lot. 
Mace  v.  Smith,  104  Ind.  153,  72 
N.  E.  1135. 

Under  a  statute  providing  that  the 
application  shall  state  "the  place 
particularly  describing  it"  a  notice 
describing   the    place    as    "  a    certain 


§  245]  OBTAINING   OF  LICENSE  GENERALLY.  289 

full  information  of  the  place  where  the  license  is  about  to  be 
exercised  so  that  any  citizen  may  object  to  the  granting  thereof.80 
Where  this  is  required  by  statute  it  is  a  requisite  which  must  be 
complied  with,sl  and  if  there  is  a  misdescription  of  the  premises 
in  the  petition  and  in  fact  no  such  place  as  that  described  the 
defect  is  held  to  be  fatal.82  But  though  the  notice  was  defective 
in  failing  to  specify  the  house  at  which  the  applicant  desired  to 
sell,  such  defect  was  held  to  be  immaterial  where  the  order  of  the 
court  granting  the  license  fixed  the  place.83 

§  245.  Petition — statements  as  to  applicant. 

Residence  in  the  county  may  be  an  essential  to  obtaining  a 
license,  and  where  it  is  it  must  be  shown  by  application  or  other- 
wise.84 So  a  residence  in  the  city  or  town  may  be  necessary  to 
appear.85  Citizenship  also  may  be  an  essential.  And  where  a 
petition  for  a  license  states  that  the  applicant  is  a  citizen  of  the 
United  States  and  was  born  in  Ireland,  this  is  sufficient,  it  not 
being  necessary  to  allege  how  he  became  a  citizen.86  But  though 
under  the  statute  the  petition  should  aver  that  the  applicant  is 
"  a  male  person  "  yet  this  is  an  informality  which  constitutes 
no  valid  reason  for  not  granting  the  license  where  the  name  given 
is  that  of  a  male  and  the  petition  several  times  refers  to  such 
person  by  the  pronoun  "  him."  8"  In  the  case  of  a  firm  the  peti- 
tion should  set  out  the  individual  names  of  the  firm  where  the 
statute  requires  that  the  petitioner  shall  set  out  that  the  "  appli- 
cant is  of  good  reputation  and  a  sober  and  suitable  person  to 

building    on    lot    one    in    block    four-  82.  jn  re  Hoyniak  License.  9  Kulp. 

teen  "  has  been  held  sufficient  though  3G8. 

the    lot    contains    two    buildings    and  s:*-  Cravens  v.  Adair  County  Court, 

one  of  the  buildings  two  storerooms.  17   Ky.   Law   Rep.  71,  30  S.  W.  414. 

Whillock    v.    Bartholomew,    91    Iowa  *«•  McGee  v.   Beall,   63   Miss.  455. 

240.  59  N.  W.  76.  85.  People  v.   Davis,  36  X.  V.  77. 

80.  Cheney  v.  Coughlin,  201  Mass.  86.  Walsh's  License.  208  Pa.  St. 
204,  87  N.  E.  744.  582,   57   Atl.  083. 

81.  Barnard  v.  Graham,  120  Ind.  87.  Heam  v.  Brogan,  <;4  Miss.  334, 
135,  22  N.  E.  112.  1   So.  246. 


290  OBTAINING   OF   LICENSE   GENERALLY.  [§   246 

receive  such  license."  88  But  the  place  of  birth  of  the  directors 
and  stockholders  of  a  corporation  need  not  be  set  forth  in  an  appli- 
cation by  a  corporation  for  license  to  traffic  in  liquors.89 

§  246.  Petition— false  statements— omissions  to  answer. 

A  false  statement  in  application  operates  to  vitiate  the  license 
or  certificate  issued  in  pursuance  thereof.90  And  in  "New  York 
a  liquor  tax  certificate  is  void  even  in  the  hands  of  an  assignee 
in  good  faith  where  it  was  issued  upon  an  application  containing 
false  statements.91  And  that  a  material  statement  in  an  applica- 
tion, which  was  in  fact  false  was  made  in  good  faith,  is  no  defense 
to  an  application  to  revoke  the  certificate.92  And  if  the  state- 
ments in  the  application  for  a  liquor  tax  certificate  are  false 
when  made  and  the  place  is  not  then  entitled  to  a  certificate, 
revocation  of  it  cannot  be  defeated  by  subsequently  changing  the 
physical  condition  of  the  place  so  as  to  make  it  comply  with  the 
statute.93  But  a  statement  in  an  application,  even  though  untrue, 
will  not,  if  immaterial,  be  such  a  false  statement  within  the 
meaning  of  the  statute  as  will  constitute  a  ground  for  the  revoca- 
tion of  the  certificate.94  So  though  statements  in  an  application 
may  be  untrue  yet  it  is  decided  that  if  the  applicant  would  have 
been  entitled  to  a  certificate  if  the  answers  had  correctly  stated 

88.  Loeb  v.  Duncan,  63  Miss.   89.  revocable.      Matter    of    Cullman,    39 

89.  Brewing  Co's.  License,  14  Pa.  Misc.  R.  (N.  Y.)  646,  80  N.  Y.  Supp. 
Super.  Ct.   188.  626. 

90.  Matter  of  Haight,  33  Misc.  R.  »*•  People  v.  Hilliard,  81  App.  Div. 
(N.   Y.)    544,    68    N.   Y.    Supp.    920;  (N.  Y.)    71,  80  N.  Y.  Supp.  792. 
Matter  of  Sperrv,  25  Misc.  R.  (N.  Y.)  »2.  Matter  of  Harper,  30  Misc.  R. 
361,  55  X.   V.   Supp.  421.  (N.  Y.)    663,  64  N.  Y.   Supp.  524. 

Statement     by     applicant     for  93.  Matter  of  MeMonagle,  41  Misc. 

transfer.— A    statement    in    the    ap-  R.   (N.  Y.)   407,  84  N.  Y.  Supp.  1068. 

plication  of  a   person   desirous  of  be-  See   also   People   v.   Pettit,    128   App. 

coming  a  transferee  of  a   liquor  tax  Div.    (N.  Y.)    870,   113  N.   Y.    Supp. 

certificate    and    intending   to    conduct  243. 

a  hotel  that  the  building  in  which  he  »<*.  Matter  of  Hawkins,   165  N.  Y. 

is    to    carry    on    the    hotel    complies  188,  58  N.  E.  844,  rev'g  54  App.  Div. 

with    the    3tatutory    requirements    in  617,  66  N.  Y.  Supp.  1132. 
regard  to  a  hotel   is  material  and  ir- 


a    247]  OBTAINING   OF    LICENSE   GENERALLY.  291 

the  facts,  his  certificate  will  not  thereby  be  invalidated.98  And 
an  omission  to  answer  will  nod  nec<  38arily  be  regarded  as  an 
affirmative  answer  constituting  a  false  statement.  So  when  an 
applicant  for  a  certificate  under  the  New  York  Liquor  Tax  Law 
has  in  his  application  affirmatively  answered  a  question  as  to 
whether  he  intended  to  carry  on  a  bona  fide  hotel,  on  the 
premises,  but  does  not  answer  at  all  the  next  question  as  to 
whether  such  hotel  meets  the  requirements  of  the  law,  his  failure 
to  answer  such  question  cannot  be  regarded  as  an  affimative 
answer  or  equivalent  to  it  so  as  to  support  a  charge  that  a  material 
statement  in  the  application  wras  false.  And  a  cancellation  of  the 
certificate  upon  that  ground  cannot  be  sustained  in  a  proceeding 
instituted  after  he  has  voluntarily  surrendered  the  certificate  as  a 
contention  that  no  answer  is  an  affirmative  answer  cannot  be 
sustained.96  And  where  an  applicant  failed  to  state  except  by 
implication  that  he  was  the  proprietor  of  the  hotel  as  directed 
by  statute,  it  was  held  that  such  defect  did  not  avoid  the  license, 
which  was  issued  after  a  full  hearing  and  with  knowledge  of  the 
facts.97  An  omission  to  answer  may  however  under  the  circum- 
stances be  regarded  as  a  false  statement.98 

§  247.  Petition  defective — amendment. 

Where  the  application  is  defective  in  not  stating  facts  nec- 
essary under  the  statute  to  authorize  the  licensing  board  to  issue 
the   license  it   is  properly  denied.99     And   where  the  necessary 

!»•■>•  Matter    of    Moulton,    59    App.  nearest    entrance    of    the    applicant's 

Div.    (N.   Y.)    25,  69  N.   Y.   Supp.   14.  premises,    as   required   by   tlie    Liquor 

96.  Matter    of    Lyman.    163    X.    Y.  Tax   Law.  a  certificate  issued  thereon 
536,  57  \.   E.  745.  will  he  canceled   although  the  appli- 

97.  Burn's    Appeal,    76   Conn.   395,  cant  at  time  of  making  the  applica- 
5G  Atl.  611.  tion    intended    to    and    thereafter    ac- 

9S.  Matter  of  Lyman,  28  Misc.  R.  tually  did  change  his  entrance  so  that 

(N.  Y.)    278,  59  N.  Y.  Supp.  828.  it  was  more  than  such  distance  from 

Where    an    application    for    a    liq-  the   dwelling.     People  v.    Pettit,    128 

nor  lax  certificate  failed  to  mention  a  App.    Div.       X.    Y. )    870,    113    X.    Y. 

building     occupied     as     a     dwelling  Supp.  243. 
within     two     hundred     feet     of     the  9!>.  People   v.   Board  of  Excise,   91 


092  OBTAINING   OF   LICENSE   GENERALLY.  [§   248 

facts  required  by  statute  to  be  stated  in  an  application  are  not 
set  forth  it  is  too  late  to  cure  the  defect  by  first  alleging  such 
facts  in  the  petition  upon  which  the  certiorari  is  granted.1  And 
the  court  is  not  bound  to  allow  an  amendment  to  a  petition  to 
cure  a  defect  which  is  fatal.2  So  where  the  legislature  has 
made  it  an  essential  that  the  name  of  the  owner  of  the  premises 
must  appear  in  the  petition  an  omission  to  state  it  is  held  to  be  a 
material  defect,  and  the  right  to  ament  or  cure  such  defect  is  not 
one  which  the  petitioner  may  claim  as  a  matter  of  course.3 
But  in  case  of  some  slight  irregularities  it  has  been  held  that  an 
amendment  will  be  allowed.4  And  though  jurisdictional  facts 
do  not  appear  on  the  face  of  the  petition  it  has  been  held  suffi- 
cient if  they  are  shown  by  other  parts  of  the  record.5  And  though 
an  application  for  a  license  is  defective  in  not  stating  that  the 
applicant  desires  to  sell  liquors  in  certain  quantities  to  be  drank 
on  the  premises  and  is  also  made  on  a  printed  blank  and  fails  to 
make  the  proper  insertions  and  erasures  therein  such  defects  are 
held  not  to  preclude  a  recovery  on  a  proper  statutory  bond  for 
breach  thereof  by  sale  to  a  minor.6 

§  248.  Petition — recommendation — signing  of. 

Where  it  is  required  that  a  petition  for  a  liquor  license  shall 

Hun    (N.   Y.),   94,    36    N.   Y.    Supp.  cense,  9  Pa.  Co.  Ct.  R.  303. 

gyg  4.  A  petition  may  be  amended 

Where  the  affidavit  required  of  to  cure  inregularities  such  as  in  re- 

an  applicant  for  a  license  omits  some  spect  to  the  description  of  the  prop- 

of  the  statements  which  the   statute  erty  or  the  attestation  of  the  justice 

provides  that  it  shall  contain  it  does  who    administered    the    oath.      Rahn 

not  authorize    the    issuance    of    such  Township  Licenses,  13  Pa.  Dist.  Rep. 

license,    and   the   license   is   therefore  547. 

void.     Russell  v.  State,  77  Ala.  89.  An  applicant  may  amend  his  peti- 

1.  People  v.  Board  of  Excise,  91  tion  hy  filling  Up  the  blank  as  to  his 
Hun  (N.  Y.),  94,  30  N.  Y.  Supp.  "present  residence."  In  re  Fisher's 
678.  License,  11  Pa.  Dist.  Rep.  520. 

2.  Bailey,  Nease  &  Nester's  Li-  5.  State  v.  Cautborn,  40  Mo.  App. 
censes,  5  Pa.  Dist.  Rep.  172.  94. 

3.  Miller's  License,  13  Pa.  Super.  6.  Castellano  v.  Marks,  37  Tex.  Civ. 
Ct.    273.      See    also    Donmoyer's    Li-  App.  273,   83   S.  W.   729. 


§  248] 


<>i;taini\<;  of  u<  i:nsk  \i.ly. 


293 


be  signed  by  a  specified  number  of  persons  of  a  certain  de.signiitr-d 
class,  or  that  there  must  be  a  recommendation  so  signed  such 
signatures  are  essential  to  the  granting  of  a  valid  license.7     So  it 


"•  Arkansas. — Ex  parti  Coe,  19 
Ark.   088. 

Florida.— State  v.  D'Alemberte,  30 
Fla.  545,  11  So.  005;  State  v.  County 
Commissioners,   22  Fla.   3G4. 

Illinois. —  Harrison  v.  People,  195 
111.  466,  (53  N.  E.  191. 

Kentucky. — Commonwealth  v.  El- 
more, 22  Ky.  Law  Rep.  510,  58  S.  W. 
369. 

Mississippi. — Rogers  v.  Hahn,  63 
Miss.  578;  House  v.  State,  41  Miss. 
737. 

Missouri. — Tanner  v.  Bugg,  74  Mo. 
App.  106;  State  v.  Heege,  37  Mo. 
App.   338. 

Nebraska. — Somers  v.  Vlazney,  64 
Neb.  383,  89  N.  W.  103G ;  State  v. 
Weber,  20  Neb.  4G7,  30  N.  W.  531. 

Neiv  Jersey. — Bachman  v.  Phillips- 
burg,  68  N.  J.  L.  552,  53  Atl.  620. 

Pennsylvania. — Forst's  License,  208 
Pa.  St.  578,  57  Atl.  991. 

A  statute  forbidding  the  granting 
of  a  license  unless  the  applicant  shall 
have  been  recommended  to  the  one  au- 
thorized to  issue  licenses  by  the  grand 
jury  lias  been  held  a  valid  exercise  c 
the  police  power.  Cohen  v.  Janett,  42 
M.I.   571. 

Certificate  annexed  to  appli- 
cation.— Where  it  is  provided  by 
statute  thai  there  shall  he  annexed 
to  a  petition  for  a  license  a  certifi- 
cate signed  by  at  leasl  twelve  quali- 
fied electors  of  the  ward  setting  forth 
thai  they  air  acqu  tinted  with  i  he  ap- 
plicant and  that  they  have  good  rea- 
son to  believe  that  the  statements  in 
the  petition  are  true,  a  certificate 
which  is  signed  by  sixteen  ]  ei 
sufficient  though  four  of  them  are 
not  qualified  electors.  Schmitt's  Li- 
cense, 37  Pa.  Super.  Ct.  420. 


In  New  Jersey  it  ha-  heen  de- 
cided that  §  42  of  the  inns'  and 
taverns'  act  which  provides  that  the 
signers  of  a  recommendation  for  a 
license  shall  not  have  recommended 
another  applicant  in  the  same  town- 
ship, city  or  borough  for  the  same 
year,  is  a  subsisting  and  peramount 
regulation  of  the  subject  that  is  un- 
affected by  "an  act  1m  establi  h  an 
excise  department  in  cities  of  this 
state"  or  by  the  creation  of  the  ad- 
ministrative tribunals  contemplated 
by  that  act,  and  that  it  is  unrepealed 
and  irrepealable  by  the  legislative 
acts  of  such  bodies.  Read  v.  Board 
of  Excise  Commrs.  (X.  J.  1008), 
71  Atl.  120,  construing  2  Gen.  St. 
1895,  p.  1794,  §  42  &  P.  L.  1902, 
p.   628. 

May  combine  petitions  to  ob- 
tain requisite  number. — Where  a 
petition  did  not  contain  a  sufficient 
number  of  names  as  signers  when  pre- 
sented and  considered  but  subse- 
quently more  were  added  making  the 
requisite  number  it  was  held  immate- 
rial whether  such  names  were  -igned 
to  ill.-  original  or  an  additional  peti- 
tion as,  though  the  proceeding  would 
be  considered  irregular  in  judicial  pro- 
ceedings, yel  the  strict  rule-;  of  courts 
would  in4  >e  transact  ing 

the  ordinary  business  of  the  com- 
munity, state  v.  Commissioners,  20 
Fla.  425. 

n  applicant  who  has  circulated 
several  petitions  with  materially  dif- 
ferent headings  cannot  select  one  peti- 
tion and  by  appending  there;"  n. 
on  other  petitions  he  entitled  to  a 
license.  Collins  v.  Barrier,  tit  Mis~. 
i21.   S   So.    164. 

Signer    cannot    withdraw. — Sig- 


294 


OBTAINING   OF   LICENSE   GENERALLY. 


[§  248 


is  said  that  where  the  statute  predicates  the  right  of  affirmative 
action  upon  a  petition  by  persons  possessing  a  certain  qualification 
such  as  being  taxpayers  they  have  no  jurisdiction  to  act,  unless  a 
petition  is  presented  to  them  signed  by  persons  possessing  that 
qualification.8  Thus  it  is  frequently  essential  that  a  petition 
should  be  signed  by  a  certain  number  of  the  nearest  bona  fide 
residents,9  or  of  property  owners,  or  voters  of  the  town  or  city 
or  election  precinct,10  or  citizens  of  the  town  or  city,11  or  of  tax- 
paying  citizens,  in  which  case  it  has  been  decided  that  a  require- 
ment that  a  majority  of  tax-paying  citizens  shall  sign  a  petition 
means  a  majority  of  all  together  including  males,  females  and 
minors  and  not  a  majority  of  each.12  But  in  respect  to  a  minor 
it  is  held  in  other  cases  that  though  he  may  have  the  qualification 
of  a  property  owner  yet  he  is  not  qualified  as  a  petitioner  on  an 


ner  cannot  after  petition  has  been 
presented  to  the  licensing  board,  with- 
draw bis  name  and  thus  divest  the 
board  of  jurisdiction.  Orcutt  v.  Rein- 
goudt,  46  N.  J.  L.  337. 

R.  State  v.  Heege,  37  Mo.  App.  338. 

*>•  Ballew  v.  State,  84  Ga.  138,  10 
S.  E.  623,  holding  that  under  such  a 
requirement  it  is  immaterial  whether 
such  persons  reside  in  a  different 
county  from  that  of  the  applicant's 
residence  or  whether  they  reside 
within  an  incorporated  town  or  city. 

Bach  of  several  tenants  in  com- 
mon is  a  qualified  petitioner  for  the 
proportionate  part  owned  by  him. 
People  v.  Griesbach,  211  111.  35,  71 
N.  E.  874,  reversing  112  111.  App. 
192. 

10.  Ex  parte  Coe,  19  Ark.  688; 
Groesch  v.  State,  42  Ind.  547;  Com- 
monwealth v.  Elmore,  22  Ky.  Law 
[;.  510,  58  S.  \V.  369;  House  v.  State, 
41  Miss.  737. 

A  statute  to  this  effect  is 
valid.— St ate  v.  Brown,  19  Fla.  563. 

The    applicant   may   sign    as    a 


voter. — State     v.     County     Commis- 
sioners, 22   Fla.    1. 

Payment  of  taxes  as  qualify- 
ing voter. — See  Ferguson  v.  Brown, 
75  Miss.  214,  21  So.  603,  holding  that 
under  a  constitutional  provision  that 
one  must  have  paid  his  taxes  to  be  a 
qualified  voter  it  is  immaterial  that 
his  taxes  are  paid  by  another. 

11.  Wray  v.  Harrison,  116  Ga.  93, 
42  S.  E.  351,  holding  that  the  term 
"  citizens "  embraces  only  qualified 
voters  of  the  town.  Rohrbacker  v. 
Jackson,  51   Miss.   735. 

Citizens  must  sign  their  own 
names. — Where  a  statute  requires 
that  a  petition  shall  be  signed  by  a 
certain  number  of  citizens  it  is  held 
that  they  must  write  their  own  names 
and  that  an  authorized  signing  by 
another  or  the  use  of  marks  is  not 
sufficient  to  confer  jurisdiction  upon 
the  court.  Grant's  License,  2  Pa.  Co. 
Ct.  R.  87. 

12.  State  ex  rel.  Pulliam  v.  Fort, 
107  Mo.  App.  328,  81  S.  W.  476. 


§  249] 


OBTAINING    OF    LICENSE   GENERALLY. 


29i 


application  for  a  license.13     Again  an  applicant  should  sign  the 
petition  where  required  to  '1"  so  by  statute.1 ' 

§  249.  Petition— freeholders — who  are. 

A  frequent  statutory  provision  is  that  the  petition  or  recom- 
mendation for  a  license  must  be  signed  by  a  certain  number  of 
householders  or  freeholders.15  As  to  what  constitutes  one  a  free- 
holder it  is  said  in  a  recent  case  in  Xebraska,  "  In  order  to  be  a 
freeholder  a  person  must  have  a  property  right  and  title  to  real 
estate  amounting  to  an  estate  of  inheritance  or  for  life  or  for  an 
indeterminate  period.  What  is  required  is  title  to  the  property, 
and  not  simply  a  contingent  or  an  expectant  estate,  nor  a  right  of 
occupancy  or  a  privilege  with  power  to  prevent  alienation  or  in- 
cumbrance by  the  holder  of  the  legal  title."  16    So  a  person  holding 


13.  People  v.  Griesbach,  211  111. 
35,  71  N.  E.  874,  reversing  112  111. 
App.  192. 

Infant  children  although  resi- 
dents and  heirs  to  estates  of  inheri- 
tance in  real  estate  in  the  precinct, 
arc  not  qualified  signers  of  a  petition 
for  the  sale  of  intoxicating  liquors  in 
such'  precinct.  Thompson  v.  Eagan, 
To  Neb.   169,  97   X.  W.  247. 

14.  State  v.  Scott,  96  Mo.  App. 
620,  70  S.  W.  730. 

i"'.  Glenn  v.  Lynn.  SO  Ala.  608,  7 
So.  924;  State  v.  Mather.  94  Iowa 
42,  62  X.  W.  684  :  Stale  v.  Weber, 
20  Neb.  467,  30  X.  W.  531;  Van 
Nortwick  v.  Bennett,  62  X".  J.  L. 
151,  -1(1  All.  689. 

A  majority  of  the  resident 
freeholders  musl  si'_rn  an  applica- 
tion for  a  license  wh,ere  the  statute 
so  requires.  ///  re  White  i  Neb. 
1909),   123  X.  W.   1034. 

Burden  of  proof  as  to  req- 
uisite number. — Where  the  remon- 
strance denies  thai  the  petition  is 
signed  by  the  requisite  number  of 
resident     freeholders     the     burden     is 


upon  the  applicant  to  show  that  it  is 
signed  by  the  required  number  of 
qualified  petitioners.  Brown  v.  Lutz, 
36  Neb.  527,  54  X.  W.  860. 

!*>•  Campbell  v.  Moran,  71  X'eb. 
615,  99  N.  W.  498.  Per  Holcomb, 
C.  J.,  quoted  in  In  re  Colin  (Xeb. 
1909).   121   X.  W.   107. 

See  also  Starkey  v.  Palm,  SO  Xeb. 
393,  114  N.  W.  287.  Wherein  it 
is  declared  that  the  statutory  qualifi- 
cation of  a  freeholder  as  a  petitioner 
upon  an  application  for  a  saloon  li- 
cense does  not  require  evidence  so 
conclusive  as  would  be  requisite  to 
enable  him  to  recover  in  an  ejectment 
againsl  an  adverse  claimant  but  it 
is  sufficient  if  he  has  by  record  or 
documentary    evidence,   or   both,    and 

in    g 1    faith    claims,    and    believes 

himself,  to  have  a  freehold  estate  in 
lands  within  the  prescribed  district 
within  which  lie  resides. 

A  wife  living  with  her  hus- 
band on  land,  the  title  to  which  i~ 
in  him  and  which  is  occupied  by  them 
jointly  as  a  family  homestead  is  not 
a   freeholder.     And  this  is  true  as  to 


296  OBTAINING   OF   LICENSE   GENERALLY.  [§   250 

a  life  estate  is  a  freeholder  within  the  meaning  of  a  statute  re- 
quiring a  petition  for  a  license  to  be  signed  by  freeholders.17  But 
a  person  holding  an  executory  contract  giving  the  right  to  pur- 
chase land  upon  a  strict  compliance  with  the  terms  of  the  contract 
in  the  future  is  not  a  freeholder.18  And  the  wife  of  an  applicant 
for  a  liquor  license,  even  though  she  may  be  a  freeholder,  is  not  a 
qualified  petitioner  within  the  meaning  of  the  liquor  law,  for 
the  reason  that  the  signer  contemplated  by  the  statute  is  pre- 
sumed to  consult  not  only  his  individual  inclination  but  the  rights 
and  interests  of  third  persons  and  of  the  general  public  in  the 
community.19 

§  250.  Petition — freeholders  must  be  bona  fide. 

The  freeholders  required  to  sign  the  petition  must  be  bona  fide 
freeholders  and  not  such  as  were  made  freeholders  merely  for  the 
purpose  of  enabling  them  to  sign.20     So  a  deed  for  land  to  many 


a  husband  living  with  his  wife  on 
land  occupied  by  them  jointly,  the 
legal  title  to  which  is  in  her.  Camp- 
bell v.  Moran,  71  Neb.  615,  99  N.  W. 
498. 

Affidavits  are  incompetent  to 
prove  that  the  petitioners  for  a  liq- 
uor license  are  freeholders  when  that 
question  is  properly  placed  in  issue  by 
remonstrance.  Batten  v.  Klamm,  82 
Neb.  379,  117  X.  W.  991. 

Not  personally  knowing  ap- 
plicant does  not  disqualify. — A 
freeholder  otherwise  qualified  to  sign 
a  petition  for  a  liquor  license  is  not 
disqualified  because  he  is  not  person- 
ally acquainted  with  the  applicant, 
or  docs  not  know  that  he  is  a  man  of 
respectable  character  and  standing  in 
the  community.  In  re  Thompson 
(Neb.  1909),  120  N.  W.  952. 

Signing  after  filing.— That 
other  freeholders  wore  permitted  to 
sign  a  petition  after  it  was  filed  with 
the  citv  clerk  and  notice  thereof  was 


given  has  been  held  to  be  no  error, 
it  also  being  declared  that  it  was  not 
necessary  to  republish  the  notice 
after  such  amendment.  Livingston  v. 
Corey,  33  Neb.  366,  50  N.  W.  263. 

17.  Harlan  v.  State,  136  Ala.  150, 
33  So.  858. 

18.  in  re  Cohn  (Neb.  1909),  121 
N.  W.  107. 

19-  In  re  Powell  (Neb.  1908),  119 
N.  W.  9.  The  court  said:  "The  wife 
in  signing  her  husband's  petition  to 
engage  in  business  would  not  con- 
sider public  interests  as  against  her 
husband's  desire  for  gain  and  her  de- 
sire for  support  for  herself  and 
family,  nor  could  she  be  used  as  a 
witness  against  him."     Per  Root,   C. 

20.  in  re  Cohn  (Neb.  1909),  121 
N.  W.  107;  In  re  Powell  (Neb.  1908), 
119  N.  W.  9;  In  re  Dye,  79  Neb.  149, 
112  N.  W.  332. 

One  made  a  freeholder  for  the 
sole  purpose  of  qualifying  him 
as   a   petitioner   for   a    liquor    license 


§  251] 


;   i     ■•■    OF    LII  ENSE   GENERALLY 


297 


persons  for  a  single  consideration  for  the  purpose  of  qualifying 
them  for  recommendation  for  liquor  Licenses  i-  fraudulent  and 
does  not  constitute  them  reputable  freeholders  within  the  stat- 
ute.21   And  lapse  of  time  will  not  qualify  a  bad  faith  freeholder 

to  sign  a  petition  for  a  liquor  license.22 

§  251.  Notice  of  application — necessity  of. 

Where  by  statute  notice  of  an  application  for  a  liquor  license 
is  essential  to  confer  jurisdiction  to  issue  it,  a  license  issued  with- 
out the  required  notice  is  void,23  and  may  be  collaterally  at- 
tacked.24 And  a  statute  requiring  notice  of  an  application  to 
sell  liquor  in  quantities  less  than  a  quart  applies  to  merchants, 
druggists  and  distillers  and  an  exception  allowed  by  statute  to 
a  druggist  to  sell  in  quantities  less  than  a  quart  for  medicinal 
purposes  on  the  prescription  of  a  physician  does  not  except 
druggists  from  giving  notice  of  an  application  for  a  license 
to  sell  in  such  quantities  for  other  purposes.25     The  word  "  prem- 


is  not  a  bona  fide  freeholder.  Marica 
v.  Ynst  (Neb.  L910),  124  X.  W.  4G0, 
citing  Cohn  v.  Welliver,  S4  Neb.  230, 
121  N.  \V.  107:  Dye  v.  Raser,  79 
Neb.   14!),   112  N.   W.   332. 

Where  a  property  owner  is 
paid  for  hia  consent  by  the  appli- 
eanl  hia  signature  should  no!  count 
in  determining  whether  the  requisite 
number  of  signers  have  been  ob- 
tained. Theurer  v.  People,  211  111. 
296,  71   X.   E.  997. 

A  person  given  apartments 
for  the  purpose  of  qualifying  him  to 
sign  a  petition  as  a  householder  is 
imt  a  householder  within  the  meaning 
of  the  statue.  Bachman  v.  Phillips- 
burg,  68  X.  J.  L.  552,  53  Atl.  620. 

21.  Austin     v.    Atlantic    City,    48 

X.    J.    L.    US,    8    Atl.    65;    Smith    v. 

Elizabeth,    46    X.    J.    L.    312;    In    re 

Dye,    79    Neb.    1  19,    112   X.   W.    332; 

net!     v.    Otto,    68    Neb.    652,    04 


X.  W.  SOS:  Colglazier  v.  McClary  & 
Martin,  5  Neb.  (Unoff.)  332,  9S  N. 
W.   670. 

A  person  is  not  a  qualified  free- 
holder within  the  meaning  of  a  stat- 
ute where  he  holds  by  a  deed  given 
to  him  for  the  purpose  of  qualifying 
him  to  sign  a  petition.  Austin  v. 
Atlantic  City,  48  N.  J.  L.  lis.  :{  Atl. 
65;  Smith  v.  Elizabeth,  46  N.  J.  L. 
312. 

ii--  In  re  Dye,  79  Xeb.  149,  112 
X.  W.  ::::2. 

23.  Pisar  v.  State,  56  Neb.  4.V>. 
76  X.  W.  869;  Zielke  v.  State,  12  Neb. 
750,  60  X.  W.  L010;  Brown  v.  Lutz, 
36  Neb.  :>27,  :>(   N.  W.  860. 

24.  PiSar  v.  State.  56  Neb.  455,  76 
X.  W.  869.  See  also  Brown  v. 
Murphy,  :»1  X.  J.  L.  250,  17  Atl. 
157. 

2.";.  Commonwealth  v.  Hawkins,  98 
Ky.  176,  32  S.  W.  409.    See  Evana  v. 


298  OBTAINING   OF  LICENSE  GENERALLY.  [§   252 

ises  "  in  a  statute  providing  that  an  applicant  for  a  liquor  license 
must  give  a  public  notice  thereof  stating  the  "precise  location 
of  the  premises  "  whereon  he  desires  to  sell  is  held  to  import 
a  definite  tract  of  land  and  the  building  located  thereon  in 
which  he  desires  to  sell  and  such  notice  should  describe  the  lot  on 
which  the  building  stands  in  which  the  sales  are  to  be  made  but 
need  not  describe  the  room.26 

§  252.  Notice  of  application — necessity  of  publication  of. 

Where  publication  of  notice  is  required  by  statute  this  is  essen- 
tial to  confer  jurisdiction  upon  the  court.27  So  where  the  statute 
requires  notice  of  an  application  for  a  license  to  be  published  in 
a  newspaper  in  the  county,  having  the  largest  circulation  compli- 
ance therewith  is  essential,  and  such  notice  must  be  published  in 
every  issue  of  the  paper  for  the  time  designated  whether  a  daily 
or  a  weekly  paper.28  And  where  a  statute  requires  a  notice  to  be 
published  in  a  newspaper,  courts  will  presume  that  the  notice  is 
to  be  given  in  the  ordinary  language  of  the  state  and  in  a  news- 
paper published  in  the  same  language.29  The  object  of  the  publi- 
cation of  a  notice  is  to  give  any  person  who  may  have  a  valid 
reason  why  the  licensee  should  not  be  granted  an  opportunity  to 
come  forward  and  state  his  objection.30  The  license  board  in  the 
absence  of  authority  conferred  upon  it  has  a  right  to  designate  the 
papers  in  which  notice  of  an  application  shall  be  published.31 

Commonwealth,  95  Ky.  231,  24  S.  W.  lish.  the  notice  of  an  application  for 

632.  a   license  after  additional  names  are 

20.  Kunkel  v.  Abell,  170  Ind.  305,  permitted  to  be  added  to  the  petition. 

84  N.  E.  503.  Thompson    v.    Eagan,    70    Neb.    169, 

27.  Goodwine     v.     Flint,     28     Ind.  97  N.  W.  247. 

App.  36,  60  N.  E.  1102.  28.  State  v.  South  Omaha,  33  Neb. 

Whether  or  not  separate  edi-  876,   51    N.   W.   291.     See   also  Rose- 

tions  of  a   daily  paper  arc  separate  water   v.   Pinzenscham,   38   Neb.   835, 

istinet   publications    is   a    ques-  57  N.  W.  563. 

tion   of  fact  to  be  determined,    from  29«  Publishing  Co.  v.  City  of  Jer- 

the    e                  by    the    license    board.  sey  City.  51  N.  J.  L.  437,  24  Atl.  571. 

Rosewater   v.    Pinzenscham,    38    Neb.  30.  State  v.  South  Omaha,  33  Neb. 

8:55.  57  N.   W.  563.  870.   51   N.   W.  291. 

It  is   not   necessary   to   repub-  31.  Feil    v.     Kitchen    Bros.    Hotel 


§   253]  OBTAINING    OK    LICENSE   GENERALLY.  299 

§  253.  Notice  of  application — sufficiency  of  publication. 

Where  the  statute  requires  the  notice  of  an  application  for  a 
license  shall  be  published  in  a  newspaper  and  specifies  what  it 
Bhall  contain  a  substantia]  compliance  which  satisfies  the  purpose 
of  the  statute  is  sufficient  and  an  immaterial  departure  from  the 
literal  terms  of  the  statute  will  not  be  permitted  to  invalidate  the 
license  granted.32  So  where  the  names  of  the  petitioners  are 
published  it  is  decided  that  a  failure  to  publish  the  marks  of  a  few 
of  such  petitioners  is  not  material  as  the  publication  of  the  names 
is  sufficient  for  all  practical  the  purposes  for  which  the  publication 
was  intended.33  In  the  case  of  a  publication  of  a  notice  upon 
an  application  for  a  license  to  a  firm  it  should  state  the  names  of 
the  persons  who  comprise  the  firm  where  the  statute  requires  that 
such  a  notice  shall  set  forth  the  name  of  the  applicant  in  full.34 
"Where  the  statute  requires  the  publication  of  a  notice  giving  the 
particular  location  of  the  premises  in  order  that  owners  of  land 
within  a  certain  distance  thereof  may  object,  if  such  notice  does 
not  give  it,  the  proceedings  of  license  grant  will  be  quashed  on 
certiorari.^  The  question  of  whether  proper  notice  by  publica- 
tion has  been  given  by  an  applicant  for  license  as  require  d  by  law 
can  not  be  inquired  into  in  a  prosecution  against  such  person  for 
retailing  intoxicating  liquors  without  a  license.36 


Co.,  57  Neb.  22,  77  X.  W.  344:  Rose-  statute     required     thai     such     notice 

water   v.   Pinzenscham,   38   Neb.   835,  should   give   the  applicant's  nana'   in 

57  X.  W.  563.  full    it    was  sufficienl    where   he  gave 

In  Oklahoma  it  lias  been  decided  only   the    initial   of   Ins   middle   name 

thai    the   law   contemplates   thai    the  instead  of  writing  it    in  full. 

applicant   shall  selecl   the  newspapers  '•''•'••  S              County  l      omissioners, 

and  give  his  notice,  and   make  proof  22   Fla.    1. 

both  as  to  the  publication  of  the  no-  ..|#  ( ,mmi„mVt,aUh   v_    ^           [50 


tices  and  the  circulation  of  the  papers      ^&ss    ■  g  ,    _•■;  v     |.-    99 
and   thai    the  practice  of  having  the 
county  clerk  give  the  notices  by  publi- 
cation  IS  not   authorized.     Watkins  v. 
Grieser,  11  Okla.  302,  66  Pac.  332. 

32.  Braconier     v.      Packard.      136  S6,  Hornaday    v.     state.    43    Ind. 

Mass.     50,    holding    that     where     the       306. 


:?.-..  Dexter  v.  Town  Council  of 
Cumberland,  17  P.  1.  222,  -Jl  Atl. 
347. 


300 


OBTAINING   OF   LICENSE   GENERALLY. 


[§    254 

§  254.  As  to  consents  generally. 

As  we  have  already  stated  the  legislature  may  require  that  the 
consents  of  owners  within  a  certain  distance  of  the  proposed  place 
or  of  other  persons  must  be  obtained  as  a  condition  precedent  to 
the  granting  of  a  license.37  So  in  New  York  it  is  decided  that 
under  the  Liquor  Tax  Law  the  necessary  consents  of  owners  of 
dwellings  must  be  filed  before  a  certificate  is  issued  and  that  the 
court  has  no  power,  after  a  citizen  has  applied  to  have  a  certifi- 
cate revoked  to  permit  the  holder  to  file  such  consents  nunc  pro 
tunc.38  Where  a  provision  requires  the  written  consent  of  a  ma- 
jority of  the  bona  fide  house  holders  or  property  owners  within  a 
certain  distance  of  the  proposed  place  it  means  either  one  or  the 
other  indifferently  and  without  distinction.39     The  word  "  block  " 


37.  See   sees.   254-259   herein. 

Owner  of  fee  in  street  as 
within  distance. — Under  a  statute 
providing  that  no  license  shall  be 
granted  against  the  objection  of  an 
"  owner  of  real  estate  within  twenty- 
five  feet  of  the  premises  "  it  has  been 
decided  that  an  owner  of  real  estate 
on  the  opposite  side  of  a  street  which 
is  forty  feet  wide  who  is  also  the 
owner  of  the  fee  in  the  street  is  an 
owner  of  the  fee  with  such  a  title  as 
renders  him  an  owner  of  real  estate 
within  the  meaning  of  the  statute. 
Moran  v.  Gallagher,  199  Mass.  486, 
85  N.  E.  579. 

Where  the  written  consent  of 
the  majority  of  a  board  of  police 
commissioners  is  prerequisite  to 
the  right  of  an  official  to  grant  a  li- 
cense, such  consent  must  be  obtained. 
Purdy   v.    Simton,   56   Cal.    123. 

Consent  as  consideration  for 
note. — Where  the  real  consideration, 
or  a  part  at  least,  for  the  execution 
of  a  note  by  a  saloon  keeper  was  the 
consent  of  an  adjoining  property 
owner  to  the  operation  of  the  saloon 
such  consideration  is  illegal  and 
though  it  may  form  only  part  of  the 


consideration  yet  the  contract  being 
indivisible,  the  entire  note  is  vitiated. 
O'Connor  v.  Kleiman  (Iowa  1909), 
121  N.  W.  1088. 

38.  Matter  of  Lord,  32  Misc.  E. 
(N.  Y.)  223,  66  N.  Y.  Supp.  252. 
Examine  Matter  of  Johnson,  18  Misc. 
R.   (N.  Y.)   498,  43  N.  Y.  Supp.  1074. 

Bight  to  withdraw  consent.— 
An  owner  of  a  dwelling  may  revoke 
and  cancel  his  consent  at  any  time 
before  it  has  been  filed  with,  presented 
to,  or  in  any  manner  acted  upon  by 
the  officer  to  which  the  application  is 
made  for  a  certificate  and  the  fact 
that  an  applicant  may  have  expended 
some  money  in  fitting  out  his  prem- 
ises is  held  not  to  affect  such  right. 
Matter  of  Adriance,  59  App.  Div. 
(N.  Y.)    440,  69  N.   Y.   Supp.   314. 

But  in  Illinois  it  is  decided  that 
the  consent  of  a  property  owner  may 
be  withdrawn  before  final  action  by 
the  licensing  board.  Theurer  v.  Peo- 
ple, 211  111.  296,  71  N.  E.  997.  See 
also  Green  v.  Smith,  111  Iowa  183, 
82  N.  W.  448. 

39.  Shepard  v.  City,  51  La.  Ann. 
847,  25  So.  542. 


§8   255  256]     OBTAINING  OF  LICENSE  GENERALLY.  301 

as  used  in  a  statute  or  ordinance  requiring  the  consent  of  prop' 
owners  on  both  sides  of  tho  street  in  the  block  is  synonymous  with 
the  word  "square"   and  means  the  territory   bounded  by  four 

street-.'" 

§  255.  Sufficiency  of  consent — signers. 

One  owner  duly  authorized  by  all  the  owners  may  execute  a 
consent  which  will  bind  the  premises.41  And  the  authorized 
agent  of  an  owner  may  sign  a  consent  for  him.42  And  it  has  been 
decided  that  a  consent  of  the  original  owners  of  premises  made 
and  filed  and  given  to  their  tenant  for  an  unlimited  term  remains 
effective  so  long  as  the  premises  are  continuously  occupied  by  the 
tenant  for  traffic  in  liquors,  not  withstanding  a  subsequent  change 
in  the  ownership  of  the  premises.43  But  the  consent  of  the  lessee 
of  a  building  is  not  sufficient  where  the  consent  of  the  owner  is  re- 
of  a  building  is  not  sufficient  where  the  consent  of  the  woner  is  re- 
quired.44 

§  256.  Consents  of  owners  of  dwellings — sufficiency  and  neces- 
sity of. 
In  making  the  estimate  of  the  number  of  consents  of  the  own- 
ers of  buildings  used  exclusively  as  dwellings  vacant  dwellings 
designated  exclusively  for  occupation  as  dwellings  are  to  be  con- 
sidered.45    And  a  dwelling  house  does  not  lose  its  character  as 

40.  Harrison    v.     Feople,     195    111.  of   the   block   in    which    such    liquors 

466,  63  N.  E.   191.  or  any  thereof  are  to  be  sold." 

See    also    Slater    v.    Fire    &     Police  41.  Matter  of  Cowles,   34   Misc.   R. 

Board   of   City   and    County    of   Den-  (X.  y.)    447.  69  N.   Y.  Supp.  7.J6. 

ver,   43   Colo.   225;    96    Pac.   554,   so  42.  Theurer    v.     People,     211     111. 

holding  in  construing  a  provision  in  01)(.    -^  j,    -,    ,)()_ 


a  city  charter  which  was  as  follows 

"  No  license  for  tlie  sale  of  spirituous 

.......       r            •     u  (N.  Y.)   447.  69  X.  Y.  Supp.  756. 

malt,  or  intoxicating  liquors  in  liquor  v                                              rr 

saloons,  dramshops,  or  tippling  houses  44,  Matter  of  Sherry,  25   Misc.  R 

shall  he  granted,  excepl   mi  the  peti-  <x-  Y-)  361»  :,■"',  x-  v-  Supp.  421. 

tion  of  the  owners  of  a   majority  of  *•""»•  Matter  of  Ruland,  21   Misc.  R. 

the    real    estate    within    the    frontage  1  X.  Y.)   .">04.  47  X.  Y.  Supp.  561. 


43.  Matter  of  Cowles,   3  1   Misc. 


302  OBTAINING  OF  LICENSE  GENERALLY.  [§   257 

such  because  the  owner  occasionally  lets  rooms  by  the  week.46 
The  half  of  a  double  dwelling  may  also  be  treated  as  a  separate 
building  for  the  purpose  of  obtaining  the  necessary  consents  to  the 
conduct  of  the  traffic  in  the  other  half.47  And  a  building  used 
exclusively  as  a  flat  for  dwelling  purposes  is  used  exclusively  as 
a  dwelling  where  it  was  built  ofter  a  business  block  to  which  it 
forms  an  addition  where  it  does  not  communicate  with  the  rest 
of  the  block. 4S  But  a  building  occupied  merely  to  evade  the  stat- 
ute is  not  occupied  as  a  dwelling  and  where  the  consent  of  such 
an  occupant  is  one  of  the  required  ones  to  the  granting  of  the 
certificate  it  will  be  revoked.49  But  the  consents  of  owners  of 
buildings  used  mainly  for  business  purposes  cannot  be  counted 
in  determining  whether  sufficient  consents  have  been  procured  of 
owners  of  buildings  used  exclusively  for  dwellings.50  And  where 
residences  have  long  been  vacant,  and  the  character  of  the  neigh- 
borhood is  rapidly  changing  from  a  residence  to  a  business  section 
as  a  result  of  which  the  buildings  are  not  likely  to  be  again  occu- 
pied as  residences,  it  is  not  necessary  to  obtain  the  consents  of  such 
owners.51 

§  257.  Exemption  from  obtaining  consents — New  York  Liquor 
Tax  Law. 

The  ]STew  York  Liquor  Tax  Law  of  1896  excepted  from  the 
obtaining  of  consents  those  places  where  the  liquor  traffic  was 
carried  on  at  the  time  of  the  taking  effect  of  the  act.52  This  ex- 
emption of  consents  as  it  affects  hotels  is  held  not  to  apply  to  a 
place  occupied  as   a  boarding  house.53      This  privilege   did  not 

46.  Matter  of  Veeder,  31  Misc.  R.  so.  Matter  of  Ireland,  41  Misc.  R. 
(N.  Y.)  569,  65  N.  Y.  Supp.  517.  (N.  Y.)  425,  84  N.  Y.  Supp.  1100. 

47.  Matter   of   Patterson,   43   Misc.  51.  Matter  of  Townsend,  195  N.  Y. 
R.    (N.  V.)    498,  SO  N.  Y.  Supp.  437.  214,  88  N.  E.  41. 

48.  Mai  for  of   Lyman,  20  Misc.  R.  52.  N.   Y.   Liquor   Tax   Law,    1896. 
(N.  Y. )   568,  57  X.  Y.  Supp.  488.  53.  Matter  of  Harper,  30  Misc.  R. 

49.  Matter  of  Lyman,  24  Misc.  R.  (N.  Y.)   663,  64  N.  Y.  Supp.  524. 
(X.  Y. )   552,  53  X.  Y.  Supp.  577. 


g   258]  OBTAINING  OF  LICENSE  GENERALLY.  303 

attach  to  the  property  in  perpetuity  and  does  nol  necessarily 
under  all  circumstances  run  wiili  the  land  bul  it  may  be  lost  by 
abandonment  or  non-user  when  the  facts  and  circumstances  are 
such  as  to  justify  the  conclusion  that  the  owner  intended  to  dis- 
continue traffic  at  that  place.54  An  abandonment  of  the  prem 
by  one  carrying-  on  a  liquor  business  deprives  him  of  his  privileged 
character  given  by  the  Liquor  Tax  Law  and  a  subsequent  appli- 
cant must  obtain  required  consents.55  A  temporary  suspension, 
however,  of  business  caused  by  fire,  accident,  or  stress  of  circum- 
stances does  not  deprive  one  of  the  rights  to  a  liquor  tax  certificate 
so  secured.50 

§  258.  Within  certain  distance — nearest  entrance — determining 
distance  and  entrance. 
Where  a  statute  contains  restrictions  against  the  granting  of 
a  license  such  as  the  requiring  of  consents  of  a  designated  class 
of  persons  within  a  certain  distance  of  the  nearest  entrance  to  the 
proposed  place  of  business  it  is  decided  that  the  distance  is  to  be 


54.  Matter  of  Hawkins,  165  N.  Y. 
188,  58  N.  E.  884,  rev'g  54  App.  Div. 
617,  66  N.  Y.  Supp.  1132;  Matter  of 
Lyman,  34  App.  Div.  (X.  Y.)  389, 
54  N.  Y.  Supp.  294  j  People  v.  Hamil- 
ton, 25  App.  Div.  (N.  Y.)  428,  49 
N.  V.  Supp.  605 j  Matter  of  Lewis,  26 
Misc.  R.  (X.  Y.)  532,  57  N.  Y.  Supp. 
676;  Matter  of  Zinzow,  18  Misc.  R. 
(N.  V.l    653,  43  N.  Y.  Supp.  714. 

55.  Matter  of  Brewster,  85  App. 
Div.  (N.  Y.)  235,  83  X.  Y.  Supp. 
564  :  Matter  of  Ritchie,  18  Misc.  R. 
(N.   Y.)    341,  40  N.  Y.  Supp.  1106. 

•".<:.  Matter  of  Kessler,  L63  \.  Y. 
205,  57  N.  E.  402.  rev'g  14  App.  Div. 
635,  60  N.  V.  Supp.   1141. 

Effect  of  adoption  of  local  op- 
tion.— Tin's  rigW  to  a  certificate  with- 
out consents  is  a  property  righl  and 
is  not  extinguished  by  the  vote  of 
the  electors  of  the  town   under  local 


option  provisions  of  the  statute. 
People  ex  rel.  Sandman  v.  Brush, 
179  N.  Y.  93,  71  X.  E.  731,  affg 
92  App.  Div.  611,  86  X.  Y.  Supp. 
1144.  The  court  said:  "Such 
a  vote  has  no  other  effect  than 
to  suspend  the  traffic  entirely  in 
the  town  as  to  all  places  during 
the  time  specified  in  the  statute,  and 
when  the  electors  reverse  their  deter- 
mination at  a  subsequenl  town  meet- 
ing all  rights  suspended  are  revived 
and  are  in  force  as  completely  as  if 
the  prior  decisions  had  not  been 
made.  *  *  *  When  the  electors  de- 
cide against  the  traffic  that  decision 
lias  no  effect  beyond  two  years  and 
amounts  to  a  refusal  to  permit  the 
business  to  be  carried  on  a1  all.  but 
it  cannol  effect  any  other  right."  Per 
O'Brien,  J. 


304  OBTAINING   OF   LICENSE   GENERALLY.  [§   258 

measured  from  the  nearest  entrance  regardless  of  intervening 
obstructions.57  So  though  the  entrance  to  a  saloon  may  be  around 
the  corner  and  not  on  the  street  on  which  a  church  is  situated  yet 
if  measured  in  a  straight  line  it  is  within  the  prohibited  distance,  it 
is  held  to  be  within  the  inhibition  of  the  statute.58  And  the 
"  nearest  distance  "  is  not  necessarily  the  entrance  to  the  bar  or 
barroom  but  includes  an  entrance  to  the  building  through  which 
access  may  be  had  to  the  bar  or  barroom.59  So  where  the  nearest 
street  entrance  is  within  the  prohibited  distance,  the  fact  that  the 
sale  of  liquors  is  confined  to  a  room  in  the  building  which  is  more 
than  the  distance  specified  in  the  statute  is  immaterial.60  And  a 
door  which  can  be  used  as  an  entrance  to  a  saloon  and  which  is 
within  the  prohibited  distance  of  a  school  does  not  lose  its  charac- 
ter as  an  "  entrance  "  within  the  meaning  of  the  statute  prohibit- 
ing the  granting  of  a  license  for  a  saloon  with  an  entrance  within 
a  certain  distance  of  a  school  from  the  fact  that  it  is  closed  and 
locked  and  a  license  is  properly  refused.61  But  doorways  which 
have  been  permanently  closed  up  as  where  one  had  been  nailed 


57.  Matter  of  Ruland,  21  Misc.  R.  v.  Murray,  5  App.  Div.    (N.  Y.)   441, 
(N.  Y.)  505,  47  N.  Y.  Supp.  561;  See  38  N.  Y.  Supp.  609,  39  N.  Y.  Supp. 

also    Matter    of    Lewis,    26    Misc.    R.  1130. 

(N.    Y.)    532,    57   N.   Y.    Supp.    676;  59.  Matter  of  McMonagle,  41  Misc. 

People  v.  Murray,  16  Misc.  R.  (N.  Y.)  R.     (N.    Y.)     407,    84    N.    Y.    Supp. 

398,  38  N.  Y.  Supp.  609;   Matter  of  1068. 

Veeder,  31  Misc.  R.    (N.  Y.)   569,  65  60.  People  ex  rel.  Clausen  v.  Mur- 

N.  Y.  Supp.  517.  ray,  5  App.  Div.    (N.  Y.)    66,   38  N. 

58.  Matter  of  McCusker,  23  Misc.  Y.     Supp.     903,     39     N.     Y.     Supp. 
R.    (N.  Y.)    446,  51  N.  Y.  Supp.  281.  1130. 

See  also  Matter  of  Zinzow,   18  Misc.  Where    the    saloon   is    situated 

R.    (N.  Y. )    653,  43  N.  Y.  Supp.  714.  in  the   second   story  of  a  building 

Where  a  statute  forbids  the  grant-  it  is  decided  that  the  street  entrance 

ing  of  a  license  for  a  saloon  on  the  to   the   building   is   to  be  considered, 

same  street  and  within  a  certain  dis-  Matter    of    Underbill,     17     Misc.    R. 

tance  of  a  school,  if  a  proposed  saloon  (N.  Y. )    19,  39  N.  Y.  Supp.  575. 
is   in    fact   on    the   same   street   as   a  61.  Matter  of  Macy  &  Co.,  5  App. 

school    and    within    the   specified   dis-  Div.     (N.    Y. )     70,    38    N.    Y.    Supp. 

tance  it  cornea  within  the  prohibition  1146;  People  ex  rel.  Clausen  v.  Mur- 

fchough  the  entrance  may  be  upon  an-  ray,   5  App.  Div.    (N.   Y. )    66,   38   N. 

other  street.     People  ex  rel.  Clausen  Y.  Supp.  903,  39   NT.  Y.  Supp.   1130. 


§   259]  OBTAINING   OF  LICENSE  GENERALLY.  305 

up  and  another  changed  into  a  window  is  nol  an  "entrai 
which  it*  to  be  considered  in  determining  whether  the  "  nearest 
entrance"  is  within  the  prohibited  distance  as  to  the  obtaining  of 
consents.02  Again  where  a  door  was  cul  by  the  owner  of  a  dwell- 
ing so  as  to  bring  it  within  the  prohibited  distance  and  it  ap- 
peared that  such  act  was  done  after  the  license  fee  had  been  paid 
and  the  door  was  finished  on  the  day  the  certificate  was  issued 
and  had  been  made  apparently  to  affect  the  right  to  the  cer- 
tificate, it  was  decided  that  the  door  should  not  be  considered  in 
determining  the  right  to  the  certificate.63  In  Massachusetts  it  is 
decided  that  where  an  application  is  made  to  sell  liquors  in  a 
certain  building  the  entire  building  is  to  be  considered  in  order  to 
determine  whether  within  the  prohibited  distance  of  a  school- 
house.64  And  in  Rhode  Island  under  a  statute  providing  that 
u  no  license  shall  be  granted  to  authorize  the  sale  of  any  such 
liquors,  at  any  building  or  place  where  the  owners  of  the  greater 
part  of  the  land  within  two  hundred  feet  of  such  building  or  place 
shall  file  "  an  objection  to  the  granting  of  such  license  it  has 
been  decided  that  there  being  in  the  statute  no  limitation  of  the 
prescribed  area  to  land  within  the  state,  the  whole  areas  irrespec- 
tive of  the  boundary  line  of  the  state  would  be  included.65 

§  259.  Words  "  church  "  and  "  schoolhouse  "  as  used  in  license 
laws  construed. 
In  construing  the  meaning  of  the  word  "schoolhouse"  in  a 
statute  prohibiting  the  granting  of  a  license  for  a  saloon  within  a 
certain  distance  of  such  a  building  it  has  been  determined  in  New 
York  that  under  the  liquor  tax  law  in  that  state  the  schools  in- 

•32.  Matter  of  Purdy,  -tit  App.  Div.  under  the  Massachusetts  law  t lie  dis- 

(X.  Y.)    133,  57  X.  V.  Supp.  629.  lance    is   to    be    measured    from   the 

63.  People  ex  rel.  Scobell  v.  Kil-  aearesl  poinl  of  each  building.  See 
born.  35  Misc.  R.  (N.  V.  I  599,  72  also  In  re  The  Liquor  Locations.  13 
N.   V.   Supp.   133.  R.    I.   733. 

64.  Commonwealth  v.  Jones,  142  <;•"',•  American  Woolen  Co.  v.  North 
Mass.  573,  8  X.  E.  603,  holding  that  Smithfield,  28  R.  I.  54ti.  68  Atl.  710. 


306 


OBTAINING  OF  LICENSE  GENEKALLY. 


[§  259 


tended  to  be  protected  are  primarily  the  common  public  schools 
devoted  to  the  general  and  intermediate  education  of  children 
ami  youth  and  secondarily  semi-public  and  private  schools  con- 
ducted for  the  same  purpose,  buildings  in  which  grammar  and 
high  schools  are  conducted  being  included,  but  the  word  as 
used  was  declared  not  to  include  a  building  used  as  a  registered 
training  school  for  nurses.66  But  a  building  erected  and  used  for  a 
school  does  not  fail  to  come  within  the  designation  of  a  building 
occupied  "exclusively"  as  a  schoolhouse  merely  because  the 
teachers  or  some  of  them  reside  in  it,67  And  the  fact  that  the  site 
for  a  school  was  bought  years  after  the  establishment  of  appel- 
lant's saloon,  in  close  proximity  to  it  and  after  his  becoming  the 
owner  of  the  saloon  property  is  of  no  legal  consequence  and  does 
not  affect  the  right  of  county  commissioners  to  refuse  to  renew  the 
license.68  And  a  similar  conclusion  has  been  reached  in  New 
York  in  the  case  of  the  location  of  a  church.69    And  a  building  is 


66.  Matter  of  Townsend,  195  N.  Y. 
214.  88  N.  E.  41,  rev'g  129  App.  Div. 
909,  114  N.  Y.  Supp.  1149. 

67.  People  v.  Murray,  148  N.  Y. 
171,  42  N.  E.  584.  See  also  People 
ex  rel.  Clausen  v.  Murray,  5  App. 
Div.  (N.  Y)  441,  38  N.  Y.  Supp. 
609,  39  N.  Y.  Sup.   1130. 

68.  Schuster's  Appeal,  81  Conn. 
276,   70   Atl.    1029. 

60.  Construction  of  exemption 
under  New  York  Liquor  Tax 
!Law. — Xot  applicable  to  one  estab- 
lishing business  subsequent  to  March 
23,  1896,  and  though  after  conduct  of 
iness  for  several  years  he  finds  a 
church  erected  within  the  prohibited 
mce.  "Section  24  of  the  Liquor 
Tax  Law,  which  prescribes  the  place 
in  which  traffic  in  liquor  shall  not  be 
permitted,  forbids  such  traffic  in  a 
place  within  two  hundred  feet  of  a 
building  occupied  exclusively  as  a 
church.  The  statute  which  was  orig- 
inally enacted  in  1896  provided,  how- 


ever, that  this  prohibition  should 
not  apply  to  a  place  which  on  the  23d 
day  of  March  in  that  year  was  law- 
fully occupied  for  a  hotel  nor  to  a 
place  in  which  the  liquor  traffic  was 
lawfully  carried  on  at  that  date.  No 
exception  was  made  in  behalf  of  a 
dealer  in  liquors  who  might  lawfully 
establish  and  carry  on  his  business 
in  a  given  locality  continuously  for 
many  successive  years,  but  who  might 
find  that  upon  the  expiration  of  his 
liquor  tax  certificate  that  a  build- 
ing occupied  exclusively  as  a  church 
had  been  located  within  two  hundred 
feet  of  his  premises.  In  such  a  ease, 
of  course,  he  would  be  unable  to 
show  upon  his  application  for  a  new 
certificate,  as  required  by  the  Liq- 
uor Tax  Law,  that  there  was  no 
building  occupied  exclusively  as  a 
church  within  two  hundred  feet  of 
his  premises,  and  his  inability  to  do 
this  requires  the  excise  commissioner 
in   such   a   case,   under  the   construe- 


260] 


oirrAiM.Nc  of  1. 1<  i:\sk  (,i;m;j;allv. 


307 


used  "exclusively"  for  church  purposes  where  the  basement  is 
rented  to  societies  connected  with  the  church  and  the  rentals  are 
used  to  maintain  the  church.70  But  a  mission  qo1  connected  with 
any  church  and  with  which  no  pastor  or  clergyman  is  associated 
is  not  used  exclusively  for  church  purposes.71 

§  260.  Remonstances  generally. 

In  many  states  provision  is  made  by  statute  as  to  the  filing  of 
remonstrances.72  Such  a  statute  permitting  the  filing  of  a  re- 
monstrance by  the  majority  of  the  legal  voters  of  the  township 
and  providing  that  it  shall  be  unlawful  to  grant  a  license  to  such 
person  for  two  years  thereafter  is  not  unconstitutional  as  suspend- 


tion  of  the  statute  adopted  by  the 
courts  helow,  to  refuse  to  issue  a 
certificate. 

We  see  no  escape  from  the  logic  of 
the  reasoning  by  which  this  result 
was  reached  at  the  Special  Term  and 
in  the  Appellate  Division.  That  the 
operation  of  the  statute  in  cases  like 
the  one  now  before  us  is  manifestly 
harsh  would  doubtless  be  a  cogent 
argument  to  support  the  proposition 
thai  the  Legislature  could  not  have 
intended  such  effect,  and  might  be 
conclusive  were  the  language  of  the 
statute  at  all  ambiguous;  but  in  view 
of  the  clear  phraseology  of  the  law 
the  contention  is  inadmissible,  and 
the  courts  must  remit  those  ag- 
grieved thereby  to  relief  by  legisla- 
tive action." 

hi  re  llering  (X.  Y.  C.  A..  Nov. 
1909),  X.  Y.  Law  Journal,  Nov.  l. 
1909,  affirming  In  re  Hering  i  X.  Y. 
App.  Div.  1909),  117  X.  Y.  Supp. 
747. 

to.  Matter  of  McCusker,  23  Misc. 
R.  (X.  Y.)  446,  .",1  X.  Y.  Supp.  281  ; 
See  also  Matter  of  Zinzow.  is  Misc. 
I!.  (X.  Y.t  653,  t::  X.  Y.  Supp.  714: 
Matter  of  McCusker,  )7  App.  Div. 
(X.    Y.)    111.    62    X.    Y.    su,.p.   201; 


Matter     of     Lyman,     48     App.     Div. 
(N.  Y.)    275,   62  N.  Y.   Supp.  846. 

71.  People  ex  rel.  Duetseh  v.  Dal- 
ton,  9  Misc.  R.  (N.  Y.)  249,  30  N.  Y. 
Supp.  407. 

72.  Where  it  is  provided  by  law 
that  where  a  remonstrance  signed  by  a 
certain  number  of  electors  is  made 
against  the  granting  of  a  liquor  li- 
cense, no  license  shall  issue,  this  is 
a  condition  upon  which  it  may  or  may 
not  issue  and  where  the  remonstrance 
is  made  this  alone  is  sufficient  to  de- 
feat the  application  though  the  ap- 
plicant lie  able  to  satisfy  the  other 
conditions  in  connection  with  the  ob- 
taining of  a  license.  Davis  v.  Board 
of  Supervisors,  of  Merced  County,  7 
Cal.   App.  .",71.  '.'.-.    Pac.   170. 

Application  of  statute. — A  stat- 
ute regulating  the  -ranting  of  licenses 
and  providing  thai  if  the  majority  of 
the  legal  voters  in  the  neighborhood 
shall  protesl  against  the  application 
it  shall  be  refused  has  been  held  to 
apply  to  applications  to  sell  by  re- 
tail including  applications  to  sell  as 
hants,  distillers  ami  druggists. 
Dearer  v.  Taylor  County  Court,  98 
Ky.   135,  32  S.  VV.  402. 


308 


OBTAINING  OF   LICENSE   GENERALLY. 


[§  260 


in<*  the  general  license  law.73  And  a  licensing  board  must  act 
within  the  limits  of  the  power  conferred  upon  it  and  generally  it 
is  provided  by  statute  that  where  a  remonstrance  to  an  application 
is  filed  within  a  certain  time  no  action  shall  be  taken  by  the  licens- 
ing board  without  a  hearing  being  given  both  to  the  applicant  and 
also  the  remonstrants.  And  where  such  is  the  statutory  provision 
there  must  be  a  compliance  therewith.74  The  remonstrance  must 
be  filed  in  accordance  with  the  provisions  of  the  statute,  and  where 
it  should  be  filed  before  the  licensing  board  a  party  will  not  be 
allowed  to  file  it  for  the  first  time  on  an  appeal  from  the  decision 
of  such  board.75  And  the  court  can  not  on  appeal  where  the  re- 
monstrance was  withdrawn  before  such  board  allow  a  new  party 
to  appear  and  file  a  remonstrance.76  A  remonstrance  which  is 
not  withdrawn  relates  to  a  second  application  made  during  the 
license  year.77  A  village  clerk  being  the  clerk  of  the  village 
trustees  by  whom  licenses  are  granted  a  remonstrance  filed  in  the 


73.  State  v.  Gerhardt,  145  Ind. 
439,  44  N.  E.  469.  See  also  Flynn  v. 
Taylor,  145  Ind.  533,  44  N.  E.  546. 

"Where  a  county  ordinance 
provides  that  no  license  shall  be 
granted  to  carry  on  the  liquor  busi- 
ness in  any  election  precinct  in  the 
county  if  a  majority  of  the  electors 
in  said  election  precinct  within  one 
mile  of  the  proposed  place  of  business 
shall  make  a  written  protest  such 
provision  is  in  effect,  but  a  form  of 
limited  local  options  no  delegation  of 
judicial  power  conferred  by  the  ordi- 
nance upon  the  board  of  supervisors, 
and  is  a  valid  provision.  Davis  v. 
Board  of  Supervisors  of  Merced 
County,  7  Cal.  App.  571,  95  Pac. 
170. 

Under  a  county  ordinance  which 
provides  that  no  license  shall  be 
granted  to  carry  on  the  traffic  within 
the  territory  embraced  in  any  election 
precinct  in  said  county  if  a  majority 
of  the  electors    in  said  district  within 


one  mile  of  the  proposed  place  of  busi- 
ness sign  a  written  protest  or  if  it 
shall  appear  that  the  applicant  is 
not  a  fit  and  proper  person  the  pro- 
test itself  is  sufficient  to  defeat  the 
application  without  regard  to  the 
fact  whether  the  applicant  is  or  is 
not  a  fit  and  proper  person.  Davis 
v.  Board  of  Supervisors  of  Merced 
County,  7  Call  App.  571,  95  Pac.  170. 

74.  Hollembark  v.  Drake,  37  Neb. 
680,  56  N.  W.  296;  State  ex  rel.  Cox 
v.  Hanlon,  24  Neb.  608,  39  N.  W. 
780;  Brown  v.  Matthews,  51  N.  J.  L. 
253,  17  Atl.  154,  following  Dufford 
v.  Nolan,  46  N.  J.  L.  87;  Swan  v. 
Wilderson,  10  Okla.  547,  62  Pac.  422. 

75.  state  v.  Gorman,  171  Ind.  58, 
85  N.  E.  763;  Ex  parte  Miller,  98 
Ind.  451. 

76.  Miller  v.  Wade,  58  Ind.  91. 

77.  Rhode  Island,  Perkins.  Horse 
Shoe  Co.  v.  Board  of  License  Com- 
missioners, 19  R.  I.  643,  36  Atl.  2; 
See   McLaughlin    v.    Wisler,    2S    Ind. 


§   261]  OBTAINING   OF    LICENSE   GENERALLY.  309 

:e  of  such  clerk  is  "  filed  in  the  office  where  the  application  is 
made."78 

§  261.  Remonstances — persons  authorized  to  remonstrate. 

In  many  states  provision  is  made  by  statute  as  to  who  may  re- 
monstrate against  the  granting  of  a  liquor  license.  In  some  states 
the  right  has  been  conferred  upon  the  owner  of  property.79  And 
a  statute  allowing  the  legal  voters  of  the  town  to  remonstrate 
against  the  granting  of  a  license  is  not  class  legislation  as  all 
applicants  are  subject  to  the  same  conditions  and  terms  in  seek- 
ing to  obtain  a  license.80  And  where  the  statute  requires  that  a 
remonstrance  shall  be  signed  by  a  majority  of  the  voters  of  the 
ward,  a  remonstrance  to  be  effective  must  be  so  signed.81  And 
where  the  remonstrances  do  not  show  that  the  persons  signing 


App.  61,  62  X.  E.  73;  Hensley  v. 
Metcalfe  County  Court,  115  Ky.  811, 
74   S.   \Y.   1054. 

78.  Vanderlip  v.  Derby,  19  Neb. 
165,  26   X.   \V.   707. 

79.  The  word  "  owner  "  of  land 
as  used  in  a  statute  giving  owners  the 
right  to  object  to  the  granting  of  a 
liquor  license  has  been  denned  as 
meaning  primarily  one  who  is  seized 
of  a  freehold  estate  in  land ;  one  who 
owes  no  service  to  another  which 
limits  his  dominion  and  not  as  in- 
cluding a  lessee  of  land.  American 
Woolen  Co.  v.  North  Smithfield  (R.  I. 
1008),  69  Atl.  293. 

A  city  holding  the  fee  to  a 
park  is  an  "owner"  and  entitled  to 
objeci  to  the  granting  of  a  license. 
Dexter  v.  Sprague,  22  R.  L.  32 1.  17 
Atl.   889. 

80.  Boomershine  v.  Uline.  159  Ind. 
500,  65  N.  E.  513. 

st-  Massey  v.  Dunlap.  146  Ind. 
350,  44   X.   E.   041. 

In  Indiana  where  the  remonstra- 
tors  sign  a  remonstrance  against  the 
grant  of  a  liquor  license  it  is  not  nec- 


essary to  show  in  the  remonstrance 
that  they  are  residents  of  the  ward  or 
township  or  that  they  constitute  a  ma- 
jority of  the  voters  of  such  word  or 
township.  Bryan  v.  De  Moss,  34  Ind. 
App.  473,  73  N.  E.   156. 

A  remonstrance  signed  by  the  ma- 
jority of  the  legal  voters  of  the  town- 
ship has  been  held  sufficient  in  In- 
diana though  not  signed  by  a  ma- 
jority of  the  voters  of  the  ward. 
Shaffer  v.  Stern,  160  Ind.  375,  66 
N.  E.  1004. 

In  determining  the  majority 
of  voters  in  a  township  or  ward  in 
the  case  of  a  remonstrance  the  vote  <<( 
that  township  or  ward  at  the  last 
general  election  preceding  the  filing 
of  the  remonstrance  is  the  proper 
basis  upon  which  to  make  the  esti- 
mate. Massey  v.  Dunlap,  146  Ind. 
350,   II   X.   E.  041. 

The  status  of  the  remonstra- 
tors  becomes  fixed  when  the  remon- 
strance becomes  effective  hut  whether 
it  ever  becomes  effective  for  lack  of 
authorized  signature-  i-  a  question 
which    may    be    challenged.      Adams 


310  OBTAINING  OF  LICENSE  GENERALLY.  [§   262 

them  are  qualified  by  statute  to  do  so  mandamus  to  compel  a 
hearing  upon  the  same  will  not  be  granted.82  But  there  is  held 
to  be  a  waiver  of  objection  to  the  qualifications  of  remonstrants 
where  the  applicant  made  no  objection  thereto  either  upon  the 
hearing  before  the  board  of  commissioners  or  upon  the  appeal  to 
the  circuit  court.83  In  Oklahoma  it  has  been  decided  that  where 
the  qualifications  of  a  remonstrant  are  not  prescribed  by  statute 
any  person  may  be  one.84  So  in  Arkansas  it  is  decided  that  any 
citizen  has  the  right  to  appear  and  remonstrate  against  the  grant- 
ing of  a  liquor  license,  on  the  ground  that  the  applicant  is  not  a 
person  "  of  good  moral  character  "  as  is  required  by  statute.85 

§  262.  Remonstrances — signing  of. 

Under  a  statute  in  Indiana  providing  for  a  remonstrance  by  a 
majority  of  the  voters  of  a  township,  both  against  individual 
applicants  and  against  the  business  itself  it  is  decided  that  when 
exercised  it  prohibits  the  individual  in  the  one  instance  and  the 
business  in  the  other  from  being  licensed  for  the  term  specified  in 
the  statute  and  that  voters  may  remonstrate  through  an  attorney 
in  fact  to  whom  they  may  give  a  continuing  power  to  remon- 
strate.80   The  remonstrance  signed  by  one  under  power  of  attorney 

v.  Smith   (Ind.  S.  C.  1910),  90  N.  E.  cuted    prior    to    the    passage    of    the 

625.  individual   and   general   remonstrance 

82.  Gibboney's  Petition,  of  (In  re  act  of  1905  (acts  1905,  p.  7,  §  8332, 
Law  &  Order  Society),  185  Pa.  St.  Burns,  1908)  authorized  the  desig- 
572,   40  Atl.   92.  nated    attorney    to    execute    an    indi- 

83.  Groscop  v.  Rainier,  111  Ind.  vidual  remonstrance  signed  and  filed 
361,  12  N.  E.  694.  after   the   taking   effect   of   such    act, 

84.  Watkins  v.  Grieser,  11  Okla.  since  such  act  did  not  repeal  but 
302,  66  Pac.  332.  merely    re-enacted    the    provisions    of 

85.  Whissen  v.  Furth,  73  Ark.  366,  §  7281i,  Burns  1901,  Acts  1895,  p. 
84  S.  W.  500,  68  L.  R.  A.   161.  248,  §  9,  authorizing  a  remonstrance 

86.  McClanahan  v.  Breeding  (Ind.  against  the  individual  applicant. 
1909),  88  N.  E.  695;  Shaffer  v.  Nichols  v.  Lehman,  42  Ind.  App.  384, 
Stern,  160  Ind.   375,  66  N.  E.   1004;  85  N.  E.  786. 

Ludwig    v.    Cory,    158    Ind.    582,    64  An    error    by    an    attorney    in 

N.  E.   14;   Castle  v.  Bell,   145  Ind.  8,  fact  in  signing  Hip  name  of  a  per. 

44  N.  E.  2.  son    to   a   remonstrance   may   upon   a 

In  Indiana  powers  of  attorney  exe-  motion  to  the  court  which  is  granted 


§   2631  OBTAINING   OF  LICENSE  GENERALLY.  3H 

is  not  invalid  because  the  power  of  attorney  does  ao1  contain  the 
name  of  any  applicant  but  is  general  and  directed  against  all 
applicants  for  a  license.87    This  authority  bo  given  may  be  revoked 

at  any  time  before  it  is  exercised  and  the  revocation  becomes 
operative,  so  far  as  the  agent  is  concerned  from  the  time  he  has 
actual  notice  thereof.88  Where  attorneys  in  fact  have  signed 
remonstrances  and  a  verified  answer  to  the  remonstrance  has  been 
made  challenging  the  legal  authority  of  the  persons  to  sign 
such  answers  are  held  to  be  sufficient  to  put  upon  the  remon- 
strators  the  burden  of  proving  that  the  signers  had  such  au- 
thority.89 In  Rhode  Island  it  is  decided  that  where  a  railroad 
company  owns  land  within  such  a  distance  as  entitles  it  to  object 
to  the  granting  of  a  license,  a  remonstrance  signed  by  one  as 
superintendent  by  direction  of  the  general  manager  of  the  road 
who  has  authority  to  direct  such  signature  is  properly  signed.90 

§  263.  Remonstrances — right  to  withdraw  from. 

Persons  who  have  signed  a  remonstrance  either  themselves  or  by 
an  attorney  may  withdraw  therefrom  either  in  person  or  by  duly 
authorized  attorneys  before  such  remonstrance  has  become  effec- 
tive.91   But  by  statute  it  is  sometimes  provided  that  a  remonstrant 

be  corrected  by  amendment.    Miller  v.  1009),  88  N.  E.  937:  Miller  v.  Resler 

Resler   (Ind.  1909),  88  N.  E.  516.  (Ind.  1909),  88  N.  E.  516. 

A  person  remonstrating  against  a  90.  Lonsdale  Co.  v.  Board  of  Li- 
liquor  license  may  employ  his  initials  cense  Comissioners  of  Town  of  Cum- 
to  indicate  his  christian  name  in  berland.  18  R.  I.  5,  25  Atl.  655. 
subscribing  a  remonstrance,  provided  91.  Lee  v.  Shull  (Ind.  1909),  88 
his  surname  is  written  in  full.  Miller  1ST.  E.  522,  citing  Castle  v.  Bell,  145 
v.  Resler  (Ind.  1909),  88  N.  E.  510;  Ind.  8.  11.  4  1  N.  E.  2;  Ludwig  v. 
Collins  v.  Marvil,  145  Ind.  531,  44  Cory,  158  Ind.  582,  587.  64  X.  E.  14; 
N.  E.    187.  Ragle   v.    Mattox,    159    Ind.    584,    65 

87.  Ragle  v.  Matt. ix.  159  Ind.  584,  X.  E.  743;  Shaffer  v.  Stern.  160  Ind. 
65  X.  E.  743:  Ludwig  v.  Cory,  158  375,  •".77.  66  X.  E.  1094;  Cain  v. 
Ind.  582,  i.t   X.   E.   It.  Allen.   168   Ind.  8.  24.  79  X.   E.   896. 

88.  Honey  v.  Guillaume  (Ind.  In  Mississippi  under  a  statute  pro- 
1909),  88  N.  E.  937:  See  also  Miller  viding  thai  one  who  signs  both  a 
v.  Resler    (Ind.  190'.)).  ss  \\   K.  516.  petition  and  counter  petition  is  to  be 

89.  Honev      v.      Guillaume      (Ind.  counted    as    against    the   granting   of 


312  OBTAINING   OF   LICENSE   GENERALLY.  [§   204 

can  not  withdraw  his  name  after  a  certain  date  from  the  time  of 
Idling.0-  Under  such  a  statute  it  is  decided  that  a  person  signing 
cannot  withdraw  though  it  is  claimed  that  the  signing  was  under 
a  mistake  and  misapprehension.93  In  Nebraska  it  is  decided  that 
one  who  has  signed  a  remonstrance  cannot  defeat  the  object  thereof 
by  withdrawing  his  name  and  allowing  the  license  to  issue  in  the 
absence  of  other  signers  and  without  their  consent.94 

§  264.  Remonstrances — form  and  sufficiency  of. 

If  the  statute  required  that  a  remonstrance  shall  be  verified  by 
affidavit  compliance  therewith  is  essential.95  It  should  unless  it 
is  provided  otherwise  by  statute  be  directed  against  some  particu- 
lar applicant  and  should  not  join  two  or  more  therein.96  Where 
there  are  several  copies  of  a  remonstrance,  each  of  which  is  signed 
by  different  voters  and  filed  as  a  remonstrance,  they  will  be  con- 
sidered as  only  one  remonstrance.97  And  a  remonstrance  will  not 
be  considered  as  ineffectual  because  it  contains  surplusage  but  the 
surplusage  will  be  rejected.98  Where  the  statute  simply  provides 
that  a  remonstrance  may  be  filed  but  does  not  require  that  it  shall 

the  license,  it  is  held  that  he  may  44  N.  E.  4G9,  33  L.  R.  A.  313;  Con- 
withdraw  his  name  from  the  counter  well  v.  Overmeyer,  145  Ind.  698,  44 
petition    before    final    action    by    the  •    N.  E.   548. 

licensing  board.     Perkins  v.   Hender-  94.  State  v.  Coleman,  34  Neb.  440, 

son,  68  Misc.  631,  9  So.  897.  51  N.  W.  1025. 

92.  State  v.  Gerhardt,  145  Ind.  95-  Palmer's  License,  3  Pa.  Co.  Ct. 
439,   44   N.    E.   409.  R.    314. 

The  status  of  the   signers,  as  that  96.  Massey  v.  Diinlap,  146  Ind.  350, 

of  remonstrators,  is  also  fixed  for  the  44  N.  E.  041. 

period      prescribed     by     the     statute  97.  Flynn  v.  Taylor,   145  Ind.  533, 

within    which    a    license    can    not    be  44  N.  E.  540. 

planted   and    any   effort   by   them   to  98.  Thompson    v.    Hiatt,    145    Ind. 

withdraw    and     change     such     status  530,  44  N.  E.  486,  so  holding  where 

during  that  period  is  nugatory.     Beh-  a   remonstrance  was  directed  against 

ler  v.   Ackley    (Ind.   S.   C.    1909),  89  "John    W.    Thompson   or    any   appli- 

N.  E.  877.  cant "    the    words    or    any    applicant 

93.  Sutherland  v.  McKinney,  146  being  rejected.  Examine  Collins  v. 
Ind.  nil.  45  X.  E.  1048,  citing  White  Barrier,  04  Miss.  21,  8   So.   164. 

v.    Prifogle,    140    Ind.    64,    44    N.    E.  The  sufficiency  of  a  remonstrance  is 

926;   State  v.  Gerhardt,  145  Ind.  439,       called   into  question  by  the   filing  of 


e   265]  OBTAINING  OF  LICENSE  GENERALLY.  ;;i:; 

stall-  any  reasons  therein  why  a  license  should  not  be  granted, 
none  need  be  given.11''  But  if  the  statute  designates  the  causes 
remonstrances  can  only  be  filed  for  such  causes  as  the  statute 
specifies  and  where  a  statute  permitted  a  remonstrance  to  be  filed 
"  an  account  of  immorality  or  other  unfitness  "  of  the  applicant 
a  remonstrance  was  held  insufficient  which  merely  alleged  that 
the  business  of  selling  intoxicating  liquors  was  "  inherently 
wrong,  unlawful,  dangerous  to  public  and  private  morals."  *  A 
remonstrance  on  the  grounds  of  immorality  should  set  forth  the 
particulars  of  immorality.2  In  Indiana  it  is  held  that  the  immor- 
ality upon  which  a  remonstrance  is  based  need  not  be  limited  to 
such  immorality  as  is  specified  in  the  statute.3  An  amendment 
to  a  remonstrance  making  it  more  specific  may  be  made  on  an 
appeal  from  an  order  of  a  board  refusing  a  license.4 

§  265.  Remonstrances — hearing  of — procedure — appeal. 

A  statutory  provision  that  upon  a  remonstrance  being  filed  the 
licensing  board  shall  fix  a  day  for  hearing  the  case  is  mandatory 
and  the  action  of  the  board  must  be  in  accordance  therewith.5 
And  where  a  statute  authorizes  remonstrances  and  directs  the 
licensing  board  to  consider  the  same  mandamus  will  lie  to  compel 
proper  action  by  the  board.6  Where  a  hearing  is  given  to  the  re- 
monstrators  and  the  board  adjourns  the  adjournment  should  be  to 
a  time  which  is  reasonable.7     The  proceeding  upon  an  application 

an    application    for    a    liquor    license.  to  make  the   remonstrance  more  spe- 

Behler  v.  Ackley    (Ind.   S.  C.   1900),  cine  when  the  application  is  made  be- 

89  X.   E.  >!77.  fore    the    jury     are     impaneled     and 

J>!>.  Boomershine  v.  Uline,  159  Ind.  sworn    and     before    any    witness    is 

500,  65  X.  E.  513.  sworn.     Hardesty   v.   Hine,    135    End. 

l.  Barnes  v.   Rhoades    (Ind.  1000),  72,  34  X.  E.  701. 

s7   X.  E.  643.  •"•  State  v.   Reynolds,   18   Neb.    131, 

ii.  Grummon    v.    Holmes,    76    Ind.  25  X.  W.  610.     See  Wat  kins  v.  Grie- 

585.  ser,   11   Okla.  302,  66   Par.   332. 

3.  Groscop  \.  Rainier,  111  Ind.  361,  «:-  State  v.   Reynolds,   18  Neb.  431, 

12   N.    E.    694.  25  X'.  \Y.  610. 

i.  Stockwell  v.  Brant,  97  Ind.  474.  "•  State  v.  Weber,  20  Neb.  467,  30 

Remonstrators    should    be    allowed  N.  \Y.  531. 


314  OBTAINING   OF   LICENSE   GENERALLY.  [§   265 

for  a  license  and  the  remonstrance  is  a  judicial  proceeding,  a  civil 
action.sAnd  an  issue  of  fact  upon  the  hearing  of  an  application  for 
a  license  and  a  remonstrance  against  the  granting  of  the  same  can 
only  be  heard  on  competent  evidence  under  the  rules  governing 
civil  trials  in  courts  of  law.9  The  license  board  in  the  hearing  of 
a  remonstrance  against  granting  a  liquor  license,  has  power  to 
compel  the  attendance  of  witnesses,  the  production  of  books  and 
papers,  and  to  commit  for  contempt  a  person  if  he  persists  in  re- 
fusing to  answer  questions  or  if  he  wilfully  refuses  to  produce 
books  and  papers  before  the  board.10  Under  a  statute  giving 
voters  the  right  to  remonstrate  against  an  applicant  for  a  license 
or  the  business  generally  it  is  decided  that  each  applicant  has  a 
right  to  be  heard  on  a  remonstrance  against  individuals  during 
the  period  the  remonstrance  has  to  run.11  One  who  is  permitted 
by  statute  to  remonstrate  against  the  granting  of  a  liquor  license 
becomes  a  party  to  the  proceeding  and  though  he  has  no  pecuni- 
ary or  property  interest  that  is  affected  by  the  action  of  the  board 
he  is  entitled  to  have  the  proceedings  reviewed  on  certiorari.12 
In  Nebraska  it  is  decided  that  if  a  remonstrant  appeals  from  an 
order  of  the  excise  board  granting  a  saloon  license,  the  district 
court  is  without  authority  in  that  proceeding  to  direct  said  board 

8.  McClanahan    v.    Breeding    (Ind.  1909),  88  N.  E.  695. 

1909),  88  N.  E.  695.  12,  Darling    v.     Boesch,     67     Iowa 

».  Watkins    v.    Grieser,    11    Okla.  702,   25  N.  W.  887. 

302,  66  Pac.  332.  In   West    Virginia   a    circuit   court 

When  a   licensing  board,   upon   the  has  no  jurisdiction  at  the  suit  of  a 

hearing    of    a    remonstrance    against  protestant    against    the    grant    by    a 

the   issuance  of   a   license,   refuses   to  county  court   of   leave  to  get   license 

receive  a  part  of  the  testimony  offered  to    sell    intoxicating    liquors,    to    al- 

by    the    remonstrators,    an    offer    of  low    a    writ    of    certiorari    from    the 

proof   should   be   made,   that   the   ap-  order    of    a    county    court    granting 

pellate  court  may  determine  whether  such  leave,  and  a  writ  of  prohibition 

or  not  its  rejection  was  erroneous  or  will  issue  from  the  supreme  court  to 

prejudicial.     Seele  v.  Phelps,  81  Neb.  prohibit  the  entertainment  and  prose- 

690,   116  X.   \Y.  681.  cution  of  such  certiorari.     Such  order 

10.  Rosewater    v.    Pinzenscham,    38  is  final  and  no  process  lies  to  reverse 
Neb.  835,  57  X.  VY.  563.  it.     Myers  v.  Circuit  Court  of  Tucker 

11.  McClanahan  v.   Breeding    (Ind.  County,  64  W.  Va.  444,  63  S.  E.  201. 


§  266] 


OBTAINING   OF    LICENSE  GENERALLY. 


315 


to  reconvene  and  receive  testimony  thai   w&b  offered  by  the  re- 
monstranl  and  excluded  by  such  board.18 

§  266.  Remonstrances — burden  of  proof. 

Where  on  the  trial  of  an  application  for  a  liquor  license  a  re- 
monstrance has  been  filed,  the  burden  is  on  the  applicant  to  prove 
by  competent  evidence  all  matters  which  are  under  the  statute 
incumbent  on  him  to  do  or  to  show  to  procure  a  license.14  But 
other  matters  set  up  by  the  remonstrants  must  be  proved  by 
them.15  So  where  in  the  remonstrance  to  an  application  for  a 
license  it  is  claimed  that  the  petition  was  not  signed  by  the  req- 
uisite number  of  freeholders,  the  burden  of  proof  is  held  to  be 
upon  the  petitioner  to  establish  by  competent  evidence  the  fa#t  that 
a  sufficient  number  of  the  petitioners  were  freeholders."1  And 
where  it  is  alleged  in  a  remonstrance  that  the  notice  of  the  appli- 
cation has  not  been  published  in  the  two  newspapers  having  the 
largest  circulation  in  the  county  as  required  by  statute  the  burden 
is  on  the  applicant  to  prove  a  compliance  with  the  statute  in  this 
respect.17 


13.  In  re  Thompsen  (Neb.  1909), 
120  N.  W.  952. 

In  this  state  where  a  hearing  has 
been  had  upon  an  application  for  a 
license  to  sell  intoxicating  liquors 
and  a  remonstrance  thereto,  and  such 
remonstrance  has  been  overruled  and 
the  license  issued,  and  an  appeal  lias 
been  taken  to  the  district  court  within 
a  reasonable  time,  the  license  so  is- 
sued should  be  recalled  and  revoked 
pending  such  appeal  and  mandamus 
will  issue  to  compel  the  recall  and 
revocation  of  the  license.  State  ex 
rel.  Woods  v.  Rathsack,  82  Neb.  386, 
117  N.  W.  949. 

1-*.  Smith  v.  Young,  13  Okla.  134, 
74  Pac.  104. 

I-"-  Watkins  v.  Grieser,  11  Okla. 
302,  66  Pac.  332. 


The  burden  of  proof  is  on  remon- 
strators  to  show  that  they  come 
within  the  terms  of  the  statute  as 
where  the  statute  requires  a  remon- 
strance to  be  signed  by  a  majority 
of  the  legal  voters.  Adams  v. 
Smith  (Ind.  S.  C.  1910),  90  X.  E. 
625. 

The  burden  of  proof  is  on  the  ap- 
plicant to  show  that  a  petitioner  is 
a  bona  fide  freeholder  where  this  is- 
sue is  raised  by  a  remonstrance. 
MaHca  v.  Yo-t  i  Neb.  1910),  124  X. 
W.  460. 

!<>•  Rosenberg  v.  Rohrer  I  Neb. 
L909),  120  NT.   W.   159. 

17.  Smith  v.  Young,  13  Okla.  134, 
74    Pac.    104. 


310  OBTAINING   OF   LICENSE   GENEEALLY.  [§   267 

§  267.  Mode  of  testing  validity  of  license — collateral  attack — 

In  Illinois  it  is  decided  that  the  validity  of  a  dramshop  license 
is  properly  challenged  by  quo  warranto  proceedings  1S  while  in 
.Missouri  it  is  declared  that  the  accepted  mode  of  testing  the  va- 
lidity of  a  dramshop  license  when  the  facts  necessary  to  deter- 
mine its  validity  appear  of  record  is  by  certiorari.19  But  it  is  a 
general  rule  that  the  validity  of  a  license  can  not  be  attacked  in  a 
collateral  proceeding.  So  where  the  county  court,  having  the 
exclusive  power  of  granting  licenses,  has  determined  that  there 
has  been  a  compliance  with  the  law  by  the  applicant  for  a  license 
and  has  issued  the  same  to  him  its  judgment  or  order  is  binding 
and  conclusive  and  cannot  be  overthrown  except  in  some  pro- 
ceeding directly  attacking  it  and  cannot  be  impeached  in  a  col- 
lateral proceeding  such  as  on  the  trial  of  a  prosecution  for  sell- 
ing liquor  in  violation  of  law.20  And  on  the  prosecution  of  a 
person  charging  that,  having  a  license  as  a  dramshop  keeper,  he 
kept  his  saloon  open  on  Sunday  in  violation  of  the  law,  he  will 
not  be  permitted  to  question  the  validity  of  the  order  of  the  court 
which  issued  the  license  to  him,  as  to  permit  this  would  be  to 
attack  the  record  and  judgment  of  a  court  of  record  in  a  collateral 
proceeding.21  So  in  an  early  case  in  Kentucky  it  was  decided 
that  the  county  court  had  the  power  to  grant  a  license  to  keep  a 
tavern  and  that  if  improperly  granted  it  must  be  vacated  by  a 
direct  proceeding  and  could  not  be  collaterally  determined  on  a 
presentment  for  retailing  spirits.22     Again  where  the  return  made 

IS.  People    v.    Heidelberg    Garden  dramshop  keeper  in   a  proceeding  by 

Co.,  233   111.  290,  84  N.   E.  230,  cit-  certiorari  to   determine   his   right  to 

ing  Martens   v.   People,   180   111.   314,  sell  liquor  is  a  proper  and  necessary 

.".7  X.  E.  871 ;   Swarth  v.  People,  109  party  as  he  is  the  only  one  who  has 

111.    021;    People   v.    Chicago    Teleph.  any  right  involved  save  that   of  the 

Co.,  220  111.  238,   77   N.   E.   245.  public.      State    v.    Denton,    128    Mo. 

l»-  Coooper  v.  Hunt,  103  Mo.  App.  App.  304,  107  S.  W.  446. 

9,  77  S.  W.  483,  citing  State  v.  Heege,  20.  State  v.  Evans,  83  Mo.   319. 

37   Mo.  App.   338;    State  v.   Hitfgins,  21.  State  v.  Mulloy,  111  Mo.  App. 

71    Mo.    App.    180;    State   v.    Seibert,  679,  80   S.  W.  569. 

97  Mo.  App.  212.  71   S.  W.  95.  22.  Commonwealth    v.    Graves,    18 

Dramshop  keeper  as  party. — A  B.  Mon.    (Ky. )    33. 


§    267]  OBTAINING  OF  LICENSE  GENERALLY.  ;;i7 

by  the  city  official  issuing  a  license,  shows  that  the  city  authorities 
granted  the  license  and  shows  also  the  payment  of  the  license  fee 
and  the  giving  and  approval  of  the  bond,  it  will  be  presumed 
that  the  license  was  lawfully  granted  and  the  city  authorities  are 
estopped  from  denying  such  fact.23 

23.  Common  Council  of  Oshbosh  v.  State,  59  Wis.  425,  18  N.  W.  324. 


31g  LICENSING    BOARDS    AND    OFFICIALS.  [§   208 


CHAPTER  XII. 

LICENSING  BOARDS  AND  OFFICIALS. 

Section  2G8.  Granting  license' ordinarily  matter  of  discretion. 

269.  Nature  of  discretion  and  exercise  of. 

270.  Official's  duty  ministerial — must  issue  license. 

271.  Compelling   issuance   of   license. 

272.  Mandamus — what  essential  to  show  to  obtain. 

273.  Mandamus  to  compel  issuance  of  receipt — to  compel  action  on 

application. 

274.  Board  having  discretionary  power — right  to  appeal  from  action 

of. 

275.  Where   appeal   allowed   parties. 

276.  Where  appeal  allowed — procedure  and  practice. 

277.  Licensing  board  must  act  in  conformity  with  powers. 

278.  Power  of  board — time  of  granting. 

279.  No  power  to  grant  license  to  sell  in  forbidden  locality. 

280.  License  board  cannot  delegate  power. 

281.  Action  by  officers  de  facto. 

282.  Ordinance  granting  license — duty  of  official  to  sign. 

283.  Clerks  should  not  depart  from  order  of  court  in  issuing. 

284.  Refusal  for  violation  of  law. 

285.  Refusal  for  violation  of  law — effect  of  conviction  or  decree. 

286.  Qualifications  of  members  of  board. 

287.  Liability  of  members  of  board. 

§  268.  Granting  license  ordinarily  matter  of  discretion. 

Ordinarily  the  board  upon  which  power  to  grant  a  license  is 
conferred  is  vested  with  a  certain  discretion  in  determining 
whether  a  license  shall  be  granted  or  refused  in  each  particular 
case.1      And  a  statute  providing  that  the  board  of  trustees  of  a 

1.  Arkansas—  Whissen  v.  Furth,  73  Georgia.— Adams    v.    Gormley,    69 

Ark.  366,  os  S.  W.  161,  68  L.  R.  A.  Ga.  743. 

161;  Ex  parte  Clark,  69  Ark.  435,  64  Ramos.— Stanley    v.    Monnet,     34 
S.  W.  223. 

Connecticut. — Burns      Appeal,      76 

Conn.   395,   r,r,  Atl.   611.     Batters  v.  Minnesota.— County  Commissioners 

Dunning,  49  Conn.  479.  v.   Robinson,    16  Minn.   381. 


§  2G8] 


LII  ENSING     HOARDS    AND    Ol-TM  IAI.S. 


319 


town  "  shall  have  no  right,  power,  privilege  or  discretion  to  r< 
fuse  or  grant  licenses  until  another  election  is  held"  is  not  to  ho 
construed  as  meaning  that  they  are  to  have  no  discretion  as  to 
what  applicant  shall  be  licensed  or  as  denying  them  the  power  to 


Mississippi. — Perkins  v.  Ledbetter, 
68    Miss.    327,   8    So.   507. 

Missouri. — State  v.  Holt  Count}' 
Court,  39  Mo.  521 ;  State  v.  Fort,  107 
Mo.  App.  328,  81  S.  W.  476;  Cooper 
v.  Hunt,  103  Mo.  App.  9,  77  S.  W. 
483. 

Nebraska. — State  v.  Alliance,  65 
Neb.  524,  91  N.  W.  387;  Waugh  v. 
Cxraham,  47  Neb.  153,  66  N.  W.  301. 

New  Jersey. — Van  Nortwick  v.  Ben- 
nett, 62  N.  J.  L.  151,  40  Atl.  689. 

New  York. — People  ex  rel.  Schultz 
v.  Murray,  2  App.  Div.  607,  37  N. 
Y.  Supp.  1096;  People  v.  Commis- 
sioners, 25  N.  Y.  Supp.  873. 

Xofth  Carolina. — Mathis  v.  Board 
of  Commissioners  of  Duplin  County, 
122  N.  C.  416,  30  S.  E.  23. 

Pennsylvania. — Sparrow's  Petition, 
138  Pa.  St.  116,  20  Atl.  711  ;  Rauden- 
busch's  Petition,  120  Pa.  St.  328,  14 
Atl.  148 ;  Sperring's  License,  7  Pa. 
Super.  Ct.  131 ;  Susquehanna  County 
License,  3  Pa.  Co.  Ct.  R.  616. 

West  Virginia. — Hein  v.  Smith,  13 
W.   Ya.   358. 

The  question  whether  public 
necessity  or  convenience  as 
shown  by  the  evidence,  require  the 
granting  of  a  permit  to  sell  liquor 
is  one  peculiarly  within  the  discretion 
i if  the  court.  In  re  Applications  of 
Henery,  124  Iowa  358,  100  N.  W.  4:?. 

Refusal  in  vicinity  of  post 
office  or  court  house. — Tt  IS  not  an 
abuse  of  discretion  vested  in  the  ex- 
cise board  of  a  city  to  refuse  n  license 
for  the  sale  of  intoxicating  liquors  ;if 
a  place  in  the  near  vicinity  of  a  posl 
office  and  United  State  courthouse, 
or  at  any  other  locality  in  rear  prox- 
imity  to   a   place   which   women   and 


children  in  large  numbers  are  daily 
required  to  visit  for  business  or  other 
proper  purposes.  Jugenheimer  v. 
State  Journal  Co.,  81  Neb.  830,  110 
N.   W.   904. 

Refusal  for  reason  not  appli- 
cable.— Where  in  refusing  a  license 
the  reason  assigned  is  one  which  the 
statute  declares  shall  not  apply  to 
licenses  for  the  traffic  for  which  the 
license  in  question  is  sought,  such 
reason  is  not  a  legal  and  valid  one 
and  the  license  should  be  granted, 
although  tne  board  is  vested  with  a 
discretion  in  the  matter  in  respect  to 
other  essentials.  Geinas'  Appeal,  169 
Pa.  St.  43,  32  Atl.  88. 

Refusal  for  reason  inconsist- 
ent with  fair  exercise  of  dis- 
cretion.— The  granting  of  a  license 
in  less  than  three  weeks  after  a  re- 
fusal to  grant  a  transfer  of  a  license 
to  a  place  on  the  same  block  on  the 
ground  that  there  were  already  "  suf- 
(icient  licensed  places  in  that  vicin- 
ity "  in  the  absence  of  any  satisfactory 
explanation  or  any  change  in  the  sur- 
roundings, is  inconsistent  with  a  fair 
and  impartial  exercise  of  discretion 
and  is  evidence  of  such  discrimination 
between  the  applicants  as  to  show  that 
the  refusal  was  arbitrary  and  require 
its  reversal.  People  ex  rel.  Curran 
v.  Commissioners,  Excise  of  City  of 
Brooklyn,  12  Misc.  R.  (N.  Y.)  296, 
:>,\  \.  Y.  Supp.  22. 

Proof  as  to  granting  another 
license  under  similar  conditions 
immaterial. — In  Connecticut  it  is 
decided  thai  proof  in  the  Superior 
Court  thai  the  county  commissioners 
had  renewed  a  license  to  some  other 
applicant  to  sell  liquor  at  some  other 


320 


LICENSING    BOARDS    AND    OFFICIALS. 


[§  2G8 


refuse  to  grant  licenses  but  they  may  exercise  a  reasonable  dis- 
cretion as  to  the  number  of  licenses  which  may  be  granted.2  The 
fact  that  a  board  in  which  discretion  is  vested  in  regard  to  the 


place  near  a  church  or  schoolhouse  is 
immaterial,  since  each  application 
stands  by  itself  unfettered  by  any  ac- 
tion of  the  commissioners  taken  in 
other  cases.  Schusler's  Appeal,  81 
Conn.  276,  70  Atl.  1029. 

Covenants  in  deeds  not  to  sell 
intoxicating  liquors  on  premises 
for  which  a  license  is  sought,  how- 
ever, they  may  bind  the  parties  to 
such  deeds  are  no  legal  restraint 
upon  the  court  in  granting  licenses 
for  the  public  convenience.  Barnegat 
Beach  Assn.  v.  Busby,  44  N.  J.  L. 
627. 

Presumption  that  refusal  ■was 
for  legal  reason.— In  Pennsylvania 
it  is  decided  that  the  court  of  quarter 
sessions  need  not  set  forth  in  the  or- 
der its  reasons  for  refusing  a  license 
and  that  if  it  does  not  set  them  forth 
it  will  be  presumed  that  the  license 
was  refused  for  a  legal  reason  and  not 
arbitrarily.  Weaver's  License,  20  Pa. 
Super.  Ct.  95. 

In  Nebraska  it  is  decided  that  the 
excise  board  of  a  city  is  vested  with 
a  wide  discretion  in  the  matter  of 
granting  liquor  licenses  which  dis- 
cretion extends  to  limiting  the  num- 
ber of  licenses  which  it  will  issue  for 
the  sale  of  liquors  within  the  city,  as 
well  as  the  number  that  will  be 
granted  for  any  particular  locality. 
In  re  Jugenheimer,  81  Neb.  836,  116 
N.  W.  966. 

In  Pennsylvania  under  the  stat- 
ute it  is  held  that  the  court  may  re- 
fuse a  license  where  it  appears  that 
the  license  to  sell  at  the  place  in  ques- 
tion is  not  necessary  for  the  accom- 
modation of  the  public  though  the  ap- 
plicant may  possess  the  other  neces- 


sary qualifications.  In  re  Washington 
County  Liquor  Licenses,  11  Pa.  Dist. 
Rep.  339.  The  word  "  necessary " 
used  in  this  connection  does  not 
mean  indispensable  or  even  necessary 
to  the  best  interests  or  well  being  of 
the  individuals  composing  the  public. 
Brownell's  License,  11  Pa.  Co.  Ct.  R. 
404. 

No  injunction  to  restrain.— A 
private  citizen  who  sustains  no  injury 
differing  from  that  sustained  by  the 
public  in  common  is  not  entitled  to 
an  injunction  to  restrain  a  licensing 
board  from  granting  a  license.  Seager 
v.  Kankakee  County,  102  111.  669; 
Nast  v.  Eden,  89  Wis.  610,  62  N.  W. 
409. 

In  New  York  it  has  been  decided 
that  a  licensing  board  having  dis- 
cretionary powers  can  not  be  re- 
strained from  granting  a  license  when 
no  excess  of  authority  or  actual  cor- 
ruption is  averred  in  the  complaint. 
Leigh  v.  Westervelt,  9  N.  Y.  Super. 
Ct.   (2  Duer)   618. 

And  it  has  been  declared  that  the 
remedy  if  any  for  the  erroneous  ac- 
tion of  a  licensing  board  in  granting 
a  license  is  not  by  injunction  but 
certiorari.  Northern  Pac.  R.  R.  Co. 
v.  Whalen,  3  Wash.  Terr.  452,  17 
Pac.   890. 

No  prohibition  to  restrain  void 
grant.— Where  a  license  granted 
would  be  null  and  void  no  writ  of 
prohibition  is  necessary  to  restrain  a 
grant  thereof.  Beckham  v.  Howard, 
83  Ga.  89,  9  S.  E.  784. 

2.  Schwierman  v.  Town  of  High- 
land Park,  130  Ky.  537,  113  S. 
W.  507;  Riley  v.  Rowe,  112  Ky.  817, 
66  S.  W.  899. 


§§   269,  1*70]     LICENSING    BOAKDS    AND    OFFICIALS.  32] 

granting  of  licenses  may  ad  capriciously  or  arbitrarily  is  no  ob- 
jection to  the  validity  of  the  statute  granting  such  power.3 

§  269.  Nature  of  discretion  and  exercise  of. 

The  discretion  which  such  boards  possess  is  a  sound  discretion 
to  be  exercised  in  accordance  with  the  laws  in  force  in  respecl  to 
the  granting  of  licenses  and  to  be  properly,  fairly,  impartially, 
and  consistently  exercised  without  discrimination  in  favor  of  one 
applicant  against  another.  The  action  must  not  be  capricious  or 
arbitrary.4  So  in  a  recent  case  in  Kentucky  it  is  declared  that 
where  an  applicant  for  a  license  must  show  to  the  licensing  board 
that  he  possesses  certain  qualifications  such  as  that  he  is  a  person 
of  temperate  habits  and  good  moral  character  and  has  not  within 
a  certain  length  of  time  kept  a  disorderly  house  or  been  convicted 
of  any  crime  and  the  board  is  not  authorized  to  issue  a  license 
until  these  facts  are  satisfactorily  shown,  such  board  acts  in  grant- 
ing or  refusing  the  license  in  the  exercise  of  a  discretion,  which 
however  must  be  a  sound  discretion  and  they  cannot  act  arbitrarily 
and  their  action  must  not  be  the  result  of  mere  caprice  or  preju- 
dice.5 

§  270.  Officials'  duty  ministerial — must  issue  license. 

In  several  states  the  rule  prevails  under  the  statutes  there  in 

3.  State   v.    Settles,    34   Mont.   448,       Misc.  R.  296,  34  X.  Y.  Supp.  22. 

87  Pac.  445,  construing  a  statute  con-  Xorth  Carolina. — Attorney  General 

ferring  discretionary  power  upon  the  v    justices,  27  N.  C  315. 

board  of  county  commissioners  in  re-  Pennsylvania.— Kehnmzki's          Li- 

gard  to  the  granting  of  licenses.  ^^  lfl4  pa    gt    231     30  AU    301 . 

4.  Arkansas.— jix    parte    Levy,    43  Johnson>3   License.    156    Pa.    St.   322, 

Ark-   42-  20  Atl.  1066  j  Sparrow's  Petition,  138 

Connecticut.— Hopson's    Appeal,   05  pa   gt    ]1(.    2Q  A(,    m.  sd.landecka 

Conn.    140,   31    Atl.   531.  y    Marshall.    72    Pa.    St.    200. 
Kentucky. — Louisville   v.   Kean,    18 

B.  Mon.  9. 

New    York. — People  ex   r<  I.   Fuhry 

v.  Board  of  Excise,  of  City  of  Brook-  Virginia.— Mistook  v.  Page,  77  Va. 

lyn,  91   Hun  269,  36  X.  V.  Supp.  158;  38G- 

People  ex  r  I.  Cunan  v.  Commission-  •"•  City    of    Louisville    v.     Gagen, 

ers  of  Excise  of  City  of  Brooklyn,  12  (Ky.  C.  A.  1909),  110  S.  VY.  745. 


Utah. — Perry  v.  Chadwick,  7  Utah 
It:;.  25  Pac.  739,  998,  11  L.  II.  A.  440. 


322 


LICENSING    BOARDS    AND    OFFICIALS. 


[§   270 


force  that  the  duty  of  the  licensing  board  in  respect  to  the  issuance 
of  licenses  is  a  ministerial  one  and  that  where  there  has  been  a 
compliance  by  the  applicant  as  to  the  statutory  requirements  in 
respect  to  his  petition  and  a  showing  of  the  proper  qualifications, 
the  board  must  issue  the  license.6  So  in  Florida  it  has  been  de- 
cided that  the  county  commissioners  have  no  discretion  or  au- 
thority to  prohibit  the  sale  of  liquors  by  refusing  to  act  upon  a 
proper  petition  but  that  the  law  imposes  upon  them  the  duty  of 
granting  a  license  where  the  petition  complies  fully  with  the 
statute.7  And  in  Isfew  York  it  has  been  decided  that  upon  an 
application  to  the  county  treasurer  for  a  liquor  tax  certificate, 


6.  California. — Henry  v.  Barton, 
107   Cal.   535,  40  Pac.   798. 

Florida. — State  v.  Commissioners, 
20   Fla.   425. 

Illinois. — Zanone  v.  Mound  City,  11 
111.  App.  334. 

Kentucky. — Hodges  v.  Metcalfe 
County  Court,  116  Ky.  524,  76  S.  W. 
381 ;  Dougherty  v.  Commonwealth,  14 
B.  Mou.  239. 

New  York. — People  ex  rel.  Belden 
Club  v.  Hilliard,  28  App.  Div.  140, 
50  N.  Y.  Supp.  909. 

North  Carolina. — Hillsboro  v. 
Smith,  110  N.  C.  417,  14  S.  E.  972. 

Oregon. — MeLeod  v.  Scott,  21  Oreg. 
94,  26  Pac.  1061,  29  Pac.   1. 

In  California  the  duty  of  the  board 
of  police  commissioners  of  Los  An- 
geles has  been  held  ministerial  in 
the  granting  of  a  permit  to  carry  on 
the  liquor  traffic  while  its  duty  in  re- 
voking permits  is  quasi  judicial. 
Grumbach  v.  Lelande  (Cal.  S.  C. 
1908),  98  Pac.  1059. 

Official  bond  to  require  compli- 
ance -with  statute. — Where  the  offi- 
cial authorized  to  issue  licenses  acts  in 
a  ministerial  capacity  in  the  issuance 
of  them  he  is  bound  to  require  a  sub- 
stantial compliance  with  all  the  pre- 
•:!  statutory  conditions  and  while 


the  license  is  itself  prima  facie  evi- 
dence of  such  compliance,  the  fact  of 
non-compliance,  when  affirmatively 
shown  renders  the  license  void  and 
consequently  of  no  protection  to  the 
one  to  whom  it  is  granted.  Russel  v. 
State,   77   Ala.   89. 

7.  State  v.  Commissioners,  20  Fla. 
425. 

The  provision  of  the  Liquor  Tax 
Law  of  New  York  that  when  the  ap- 
plication for  a  certificate  is  correct  in 
form  and  the  liquor  tax  bond  is 
found  to  be  proper  in  every  way,  and 
the  required  amount  for  the  tax  is 
tendered,  the  certificate  must  be  is- 
sued by  the  county  treasurer,  unless 
it  shall  appear  by  a  certified  copy  of 
the  statement  of  the  result  of  an  elec- 
tion held  on  the  local  option  question 
pursuant  to  the  Liquor  Tax  Act  in 
and  for  the  town  where  the  applicant 
proposes  to  traffic  in  liquors  under 
the  certificate  applied  for,  that  such 
liquor  tax  certificate  cannot  be  law- 
fully granted,  does  not  require  thai 
a  certified  statement  of  the  result  of 
the  election  shall  be  filed  with  the 
county  treasurer.  Matter  of  Krumb- 
holz.  60  Misc.  R.  (N.  Y.)  534,  113 
X.   Y.   Supp.   1060. 


§   271]  LICENSING    BOARDS    AND    OFFICIALS.  323 

ho  may  not  examine  his  files  and  determine  the  truthfulness  of 
the  statements  contained  in  the  application,  but  he  musl  issue  the 
certificate  if  the  application  is  correct  in  form  ami  does  not  show 
on  its  face  that  the  applicant  is  prohibited  from  trafficking  in 
liquor,  the  treasurer's  duties  under  the  statute  being  purely  minis- 
terial.8 

§  271.  Compelling  issuance  of  license. 

In  those  states  where  the  issuance  of  a  license  is  in  the  nature 
of  a  ministerial  duty  its  issuance  may  be  compelled  by  man- 
damus at  the  instance  of  one  showing  himself  entitled  thereto.8 
And  a  licensing  board  though  it  may  be  vested  with  a  discretion 
in  the  matter  of  granting  licenses  cannot  act  arbitrarily  or  capri- 
ciously in  refusing  to  issue  a  license  and  where  it  appears  that  an 
applicant  is  entitled  to  a  license  so  far  as  compliance  with  the 
statutory  requirements  is  concerned  and  that  the  action  of  the 
board  is  of  such  a  character  issuance  of  the  license  may  be  com- 
pelled by  mandamus.10  And  where  it  appears  that  a  person  is 
entitled  to  a  license  it  is  said  that  an  appeal  to  the  court  on  moral 
grounds  to  withhold  a  writ  of  mandamus,  and  thus  to  annul 
a  valid  act  of  the  legislature  by  refusing  to  enforce  it,  is  not 


8.  People      ex      rel.      Scanlon      v.  States    v.    Commissioners,    6    Mackey 
Walker.    60    -Misc.    R.     (N.    Y.)     130,  409. 

112   N.   V.   Supp.    1021.  Illinois—  Zanone    v.    Mound    City, 

License  to  sell  "  Near  beer  ".—  103  111.  552. 

The  issuance  of  a  license  for  the  sale  Kentucky. — George  &  Bro.  v.  Win- 

of   "near  heer  "   under   a    statute   in  Chester,  26  Ky.  Law  Rep.  170,  80  S. 

North    Carolina    is   a    ministerial   act  W.    1158. 

which    may   be   compelled   by    manda-  Louisiana. — New  Orleans  v.   Smvthc, 

urns.       Parker     v.     Griffith     (N.     C.  116  La.  685,  41  So.  33;  State  v.  New 

1009),  GG  S.  E.  565.  Orleans,  113  La.  371.  3G  So.  999. 

9.  State  v.  Williams.  143  Ala.  501,  Missouri.—- State  v.   Baker,   32   Mo. 
39  So.  276:   Harlan  v.  State.   L36  Ala.  App.    98. 

150,  33  So.  858:  State  v.  Turner.  210  iska. — State    V.     Alliance,     65 

Mb.  77.  107  s.  W.  1064.     See  McLeod  Neb.  524,  '.'1   \.  W.  387. 

\.   Scott,  21   Greg.  !>4.  2G  Pac.   1061,  Pennsylvania. — Prospect      Brewing 

29  Pac.   1.  Co.'s    Petition.    127    Pa.    St.    523.    17 

10.  District    of    Columbia.— United  Atl.    1090. 


324 


LICENSING    BOARDS    AND    OFFICIALS. 


[§  271 


a  proper  argument  to  be  addressed  to  a  judicial  tribunal, 
for  if  courts  yielded  to  it  they  would  usurp  legislative  func- 
tions.11 In  a  proceeding  by  mandamus  to  compel  tbe  issu- 
ance of  a  license  the  applicant  may  attack  the  validity  of  the  law 
which  the  court  in  refusing  to  grant  it  claims  debars  him.12 
Where  however  the  action  of  a  licensing  board  in  granting  or  re- 
fusing a  license  is  in  its  nature  judicial  they  will  not  be  com- 
pelled by  mandamus  to  grant  a  license  in  the  absence  of  any 
allegation  or  proof  that  the  action  of  the  board  was  arbitrary.13 
Nor  will  mandamus  issue  where  the  law  provides  a  remedy  by 


South  Dakota.— Burke  v.  Collins, 
18  S.  D.  190,  99  N.  W.  1112. 

11.  State  v.  Commissioners,  20  Fla. 

425. 

12.  State  v.  Turner,  210  Mo.  77, 
107  S.  W.  1064;  State  v.  Cass  County 
Court  (Kans.  City  C.  A.  1909),  119 
S.  W.   1010. 

13.  Alabama. — Ramagnano  v. 
Crook,  85  Ala.   226,   3   So.  845. 

Arkansas. — Ex  parte  Whittington, 
34  Ark.  394. 

Connecticut. — Malmo's  Appeal,  72 
Conn.  1,  43  Atl.  485. 

District  of  Columbia. — Washington 
v.  Johnson,   12  App.  Cas.  545. 

Florida. — Packett  v.  State,  33  Fla. 
385,   14   So.   834. 

Georgia. — Eve  v.  Simon,  79  Ga.  120, 
S.  E. 

Indiana. — Montpelier  v.  Mills,  (Ind. 
1908),  85  N.  E.  6;  State  v.  Commis- 
sioners, 45  Ind.  501. 

Kentucky. — Heblick  v.  Judge,  10 
Ky.  Law  Rep.  811. 

Maryland. — Devin  v.  Belt,  70  Md. 
352,   17   Atl.   375. 

Minnesota. — State  v.  Common 
Council,  94  Minn.  81,  101  N.  W.  1063. 

Missouri. — State  v.  Cass  County 
Court,  (Kansas  City  C.  A.  1909),  119 
S.  W.  1010;  Stale  v.  Stiff,  104  Mo. 
App.  685,  7H  S.  W.  075;  State  v.  Hig- 
gins,  84  Mo.   App.   531. 


Nebraska. — State  v.  Pearse,  31  Neb. 
562,  48  N.  W.  391. 

New  York. — People  v.  Norton,  7 
Barb.  477. 

North  Carolina. — Barnes  v.  Com- 
missioners of  Wilson  County,  135 
N.  C.  27,  47  S.  E.  737.  Jones  v. 
Commissioners  of  Moore  County,  100 
N.  C.  436,  11  S.  E.  514;  Attorney- 
General  v.  Justices,  27  N.  C.  315. 

Pennsylvania. — Knarr's  Petition, 
127  Pa.  St.  554,  18  Atl.  639. 

A  writ  of  prohibition  will  not  is- 
sue to  compel  the  granting  of  a  li- 
cense where  it  is  merely  permissible 
upon  compliance  with  certain  condi- 
tions prescribed  by  statute.  State  v. 
Fort,  107  Mo.  App.  328,  81  S.  W.  476. 

The  police  jury  in  Louisiana 
having  been  granted  power  and  au- 
thority to  deal  with  the  subject  of 
special  elections  touching  local  option 
in  matters  of  liquor  licenses,  action  by 
it  under  such  authority  has  been  held 
to  control  the  situation  until  set  aside 
or  annulled  in  some  legal  proceeding 
and  the  sheriff  being  substantially  the 
executive  officer  of  that  body  the 
courts  cannot  ignore  the  authority  of 
the  police  jury  over  him  and  force 
him  by  mandamus  to  issue  a  license 
which  such  jury  forbids  him  to  do. 
State  v.  Davis,  119  La.  247,  44  So.  4. 


§  272] 


J. H  ENSING     BOARDS    AND    OFFU  [ALS. 


325 


appeal.1 1  And  mandamus  will  qo1  lie  to  compel  the  issuance  of  a 
license  where  the  purpose  of  such  proceeding  is  to  inquire  into  the 
regularity  or  validity  of  an  election  officially  declared  to  have 
resulted  in  favor  of  prohibition  where  the  statute  provides  a 
remedy  for  establishing  the  invalidity  of  such  election.18  And 
mandamus  will  not  issue  to  compel  the  issuance  of  a  license  to 
one  who  desires  thereby  to  affect  an  illegal  purpose  such  as  to 
transfer  it  contrary  to  law.16 

§  272.  Mandamus — what  essential  to  show  to  obtain. 

Where  one  seeks  by  mandamus  to  compel  the  issuance  of  a 
license  it  must  appear  from  the  record  of  the  case  in  which  the 
writ  is  asked  that  all  legal  prerequisites  to  the  issuance  of  a 
valid  license  exist  and  that  no  substantial  legal  requirement  is 
missing  from  the  conditions  which  make  it  a  duty  to  issue  such 
license.17     Where  the  application  does  not  conform  to  the  pro- 


14.  West  &  Co.  v.  Board  of  Com- 
missioners of  Latah  County,  14  Ida. 
353,  94  Pac.  445  holding  that  where 
the  board  of  county  commissioners  is 
vested  by  statute  with  a  discretion- 
ary power  in  the  granting  of  licenses 
and  may  refuse  to  issue  a  license 
upon  its  own  motion  or  upon  objec- 
tions duly  filed  when  in  its  judgment 
the  granting  of  a  license  will  not  be 
conducive  to  the  best  interests  of 
the  community  in  which  the  business 
is  to  be  conducted  their  refusal  to 
grant  a  license  to  an  applicant  will 
not  be  controlled  by  a  mandate  from 
the  court,  but  the  remedy  by  appeal 
as  provided  by  law  must  be  pursued. 

15.  state  v.  Martin,  55  Fla.  538, 
4G   So.  424. 

16.  State  v.  County  Commissioners, 
■21    Fla.   1. 

Suitor  with  unclean  hands  not 
entitled  to. — It  appearing  in  the 
answer,  the  averments  of  which  must 
be   here   accepted    as   true,    that    the 


premises  of  the  relator  have  been  the 
resort  of  disreputable,  vicious,  and 
disorderly  characters,  prostitutes  and 
women  of  questionable  reputation, 
that  the  relator  violated  the  terms  of 
his  license  by  selling  liquor  to  in- 
toxicated men,  and  that  the  relator 
is  not  a  lit  person  to  have  a  license, 
he  is  certainly  not  in  a  position  to 
ask  this  court  to  grant  him  this  ex- 
traordinary remedy — a  remedy  that 
courts  apply  to  prevent  a  failure  of 
justice  and  never  to  a  suitor  with  un- 
clean hands.  United  States  v.  Rich- 
ards, 37  Wash.  Law  Rep.  450. 

Where  a   license  would  not   only  be 
useless    but     one    which    the    licensing 

official  would  not  be  authorized  to 
grant  mandamus  will  not  issue,  upon 
the  principle  that  to  obtain  such  re- 
lief the  party  Beeking  it  must  show 
a  clear  legal  right  thereto.  Lyttleton 
v.  Downer  (Tex.  Civ.  App.  1910), 
124  S.  W.  094. 
it.  Hippen  v.  Ford.   129  Cal.  315, 


32(j  LICENSING    BOAEDS    AND    OFFICIALS.      [§§   273,274 

visions  of  the  statute  mandamus  will  not  be  awarded.18  And  it 
will  not  lie  to  compel  the  granting  of  a  license  to  one  who  has  not 
applied  for  the  same  in  a  proper  way  though  the  licensing  board 
has  declared  that  it  will  not  grant  any  licenses  such  board  being 
required  by  law  to  issue  licenses  to  proper  persons  at  a  proper 
place,  their  duty  being  not  discretionary  but  ministerial.19 
"Where  the  court  is  in  doubt  as  to  the  right  of  a  person  to  man- 
damus compelling  the  granting  of  a  license  to  him  it  is  declared 
to  be  the  duty  of  the  court  to  resolve  the  doubt  against  him.20 

§  273.  Mandamus  to  compel  issuance  of  receipt — to  enforce  action 
on  application. 

Mandamus  will  lie  to  compel  a  city  treasurer  to  issue  a  receipt 
to  an  applicant  for  a  liquor  license  where  such  receipt  is  a  neces- 
sary step  in  the  procurement  of  a  license.21  And  where  a  saloon 
keeper  tenders  his  application  for  a  license,  in  conformity  with 
the  ordinance  of  the  city  and  tenders  his  bond  in  conformity  with 
the  statute  he  is  entitled  to  have  them  considered  by  the  common 
council  of  the  city  at  an  early  date,  and  approved  or  disapproved, 
and  in  the  case  of  disaproval  to  be  given  reasons  therefor  and  in 
case  of  delay  mandamus  will  be  granted  to  enforce  such  action 
but  not  to  compel  the  issuance  of  the  license,  the  council  being 
vested  with  discretion.22 

§  274.  Board  having  discretionary  power — right  to  appeal  from 
action  of. 

Though  an  appeal  may  lie  from  the  action  of  a  licensing  board 

(51  Pac.  920;  State  v.  Packett   (Kans.  20.  state  ex  rel.  Crabbe  v.  Miller, 

City    C.    A.    100!)),    119    S.    W.    25;  129    Mo.   App.    390,    108    S.    W.    603, 

Harrison     v.     Dickinson      (Tex.     Civ.  citing  State  v.  Higgins,  84  Mo.  App. 

1008),  113  S.  W.  776,  citing  Arberry  531;  State  v.  Cottengin,  172  Mo.  129, 

v.  Bearers,  6  Tex.  473,  55  Am.  Dec.  72  S.  W.  498. 

701.  31'  Rowland  v.  State  ex  rel.  Zukle- 

18.  Glenn   v.  Lynn,  80  Ala.  608,  7  back,  56  Fla.  422,  47   So.  963. 

So.   02  k  22'  Cox  v.  Common  Council  of  City 

19.  Riley  v.  Rowe,  112  Ky.  817,  66       of  Jackson,  152  Mich.  630,  116  N.  W. 
S.  W.   000.  456. 


LICENSING    BOARDS    AND    OFFICIALS. 


327 


§  274] 

granting  or  refusing  a  license,  yet  where  such  board  has  discre- 
tionary [lowers  in  the  matter,  their  decision  should  nol  be  re- 
versed unless  it  appear  that  there  was  an  arbitrary  exercise  of  dis- 
cretion by  them.28     In  New  Jersey  it  has  been  decided  thai  the 

power  to  grant  a  license  being  discretionary  with  the  court  such 
discretion  cannot  bo  made  the  subject  of  review  on  appeal  and 
that  the  court  will  not  examine  into  the  facts  upon  which  the  exer- 
cise of  such  discretion  is  based.24  So  where  a  board  has  the  right 
to  limit  the  number  of  places  which  it  will  license  in  a  specified 
territory,  a  refusal  to  grant  a  license  upon  the  ground  thai  then- 
are  a  sufficient  number  of  places  already  licensed  within  such 
territory  should  be  sustained  unless  the  court  is  satisfied  that  such 
ground  is  a  subterfuge  and  does  not  constitute  the  real  reason  for 


23.  Connecticut. — Hopson's  Appeal. 
65  Conn.   140,   31   Atl.   531. 

Ioiva. — In  re  Moore  (1908),  118 
N.  W.  879. 

Kentucky. — Louisville  v.  Gagen 
(1909),  116  S.  \V.  74.1:  Thompson 
v.  Koch,  98  Ky.  400,  33  S.  W.  96; 
Pierce  v.  Commonwealth,  10  Bush  6. 

New  York. — Matter  of  Schomaker, 
15  Misc.  648,  38  N.  Y.  Supp.  167; 
People  ex  rel.  Ryan  v.  Dalton,  7  Misc. 
R.  558,  28  N.  Y.  Supp.  491. 

North  ( 'a rol ina. — Commissioners  v. 
Kane.  47  N.  C.  288.  Sec  Mathis  v. 
Board  of  Commissioners  of  Duplin 
County.  122  N.  C.  416,  30  S.  E.  23. 

24.  Barnegai  Beach  Ass'n  v. 
Busby,   tl   \".  .1.  L.  627. 

Private  individuals  who  have 
no  peculiar  interesl  in  the  action  of 
a  licensing  board  in  granting  a  li- 
cense will  not  be  allowed  to  sue  out 
a  writ  of  certiorari  to  review  the  ac- 
tion of  such  hoard.  State  v.  Gillilan 
(Vt.  1910),  75  Atl.  711. 

Where  the  mayor  of  a  city  in 
the  exercise  of  the  power  conferred 
upon  him  has  vetoed  a  resolution  of 
the  common  council  of  the  city  grant- 


ing a  license,  on  the  ground  of  the 
unsuitableness  of  the  place  where  the 
saloon  is  proposed  to  be  located,  it  is 
decided  that  such  discretion  is  not  re- 
newable by  the  courts.  Sherlock  v. 
Stuart.  96  Mich.  193,  55  X.  W.  845, 
21   L.  R.  A.  580  n. 

On  the  hearing  of  an  applica- 
tion by  a  registered  pharmacist 
for  a  permit  to  buy  and  sell  intoxicat- 
ing liquors  the  question  whether  "  tic 
reasonable  convenience  and  necessities 
of  the  people  considering  the  popula- 
tion and  all  the  surroundings  make 
the  granting  of  the  permit  proper  ' 
provided  by  the  code  is  one  to  be  de- 
termined 1>-  the  trial  court  under  the 
evidence,  in  the  exercise  of  a  sound 
discretion,  and  judgment  and  it"  it 
does  not  appear  from  the  record  that 
such  discretion  has  been  abused  the 
finding  of  the  court  hearing  the  ap- 
plication should  be  sustained.  ]n  re 
Moore    |  Iowa    1908),   118  X.  \Y.  879. 

Whether  commissioners  liable 
criminally. — If  commissioners  of  ex- 
cise having  the  power  to  grant  li- 
censes, act  i"  t_r"(>d  faith  in  granting 
one  they  cannot    be  punished   though 


328 


LICENSING    BOARDS    AND    OFFICIALS. 


[§  275 


their  action.25  And  the  exercise  of  the  discretion  of  county  com- 
missioners in  determining  whether  an  applicant  or  place  is  "  suit- 
able "  is  not  reviewable  and  alleged  errors  of  the  trial  court  in 
the  admission  of  testimony  and  the  conclusion  reached  in  the  law- 
ful exercise  of  the  discretion  conferred  cannot  be  considered  on 
appeal.26  But  though  a  licensing  board  may  have  the  right  to 
exercise  discretion  in  the  granting  or  refusing  of  a  license  yet  it 
is  decided  that  its  exercise  must  be  reasonable  and  not  arbitrary 
and  that  it  was  unreasonably  exercised  where  a  license  was  re- 
fused because  a  church  had  been  built  across  the  street  from  where 
the  business  was  located  it  appearing  that  such  business  had  been 
conducted  in  that  place  for  many  years.27 


§  275.  Where  appeal  allowed— parties. 

In  some  states  the  action  of  the  licensing  board  in  granting  a 
license  may  be  reviewed  at  the  instance  of  a  resident  and  tax 
payer,28  or  of  a  remonstrant.29     And  in  Mississippi  it  has  been 


they  act  erroneously,  as,  having  the 
power  to  act,  only  a  criminal  intent 
can  make  the  act  criminal.  People 
v.  Jones,  54  Barb.   (N.  Y.)   311. 

25.  People  ex  rel.  Hoy  v.  Mills,  91 
Hun  (N.  Y.)  144  30  N.  Y.  Supp. 
371. 

26.  Malm's  Appeal,  73  Conn.  232, 
47   Atl.    163. 

27.  City  of  Louisville  v.  Gagen, 
(Ky.  C.  A.   1909),  118  S.  W.  947. 

2«.  Beard's  Appeal,  04  Conn.  520, 
30  Atl.  775,  holding  that  such  a  per- 
son need  show  no  interest  or  griev- 
ance in  the  matter  peculiar  to  him- 
self. White  v.  Atlantic  City,  62  N.  J. 
L.  044,  42  Atl.  170,  recognizing  such 
right  where  license  granted  by  munic- 
ipal body  contrary  to  law. 

If  not  authorized  by  law  such  a 
person  cannot  sue  out  certiorari  to 
review  the  action  of  the  authorities. 
Stokes  v.  Wall,  112  Ga.  349,  37  S.  E. 
383. 


29.  Ludwig  v.  State,  18  Ind.  App. 
518,  48  N.  E.  390;  Application  of 
Smith,  120  Iowa  128,  101  N.  W.  875; 
Collins  v.  Barrier,  64  Miss.  21,  8  So. 
164;  Clarke  v.  Foltyn,  82  Neb.  610, 
118  N.  W.  119. 

Conferring  jurisdiction  on  ap- 
peal.—In  Nebraska  in  an  appeal  by 
remonstrators  from  the  decision  of  the 
licensing  board  granting  a  liquor  li- 
cense, jurisdiction  is  conferred  upon 
the  district  court  by  giving  notice  of 
the  intended  appeal  and  filing,  within 
a  reasonable  time  in  said  court,  a 
transcript  of  the  proceedings  had  upon 
the  hearing  before  the  licensing  board. 
Clarke  v.  Foltyn,  82  Neb.  610,  118 
N.  W.  119. 

A  remonstrant  cannot  appeal 
from  an  order  overruling  his  protest 
against  the  issuance  of  the  license 
though  he  may  appeal  from  the  order 
granting  the  license.  Moores  v.  State, 
58   Neb.  608,  79  N.  W.   163. 


c   276]  LICENSING     BOABDS    AND    OFFICIALS.  329 

decided  thai  a  qualified  voter  who  appears  before  the  licensing 
boar<l  and  objects  to  the  granting  of  the  license  before  final  action 
is  taken  may  prosecute  a  writ  of  certiorari  to  have  the  proceed- 
ings revived.80  An  appeal  by  an  applicant  from  on  order  r< 
injr  a  license  is  sometimes  allowed.31  In  New  York  it  has  been  di  - 
cided  that  where  the  decision  of  a  county  treasurer  in  refusing  to 
issue  a  liquor  tax  certificate  is  reversed  the  order  reversing  it  is 
appealable  under  the  code  and  the  county  treasurer  is  a  party 
aggrieved  within  the  ni<  aning  of  the  code.32  But  though  a  hoard 
of  commissioners  may  not  be  a  proper  party  on  an  appeal  yet, 
where  by  their  voluntary  act  they  have  assumed  the  character  of 
defendants,  they  Avill  not  be  permitted  to  move  to  dismiss  the  ap- 
peal on  the  ground  that  they  should  not  have  been  parties.33 

§  276.  Where  appeal  allowed — procedure  and  practice. 

The  right  of  an  appeal  from  the  action  of  a  licensing  board  is 
recognized  in  many  states.34  Xo  general  rules  however  as  to  the 
course  of  procedure  and  practice  in  the  review  of  the  action  of 
such  boards  can  be  laid  down  but  the  statute  of  each  state  must  be 
looked  to  in  determining  this  and  also  the  question  whether  the 
appeal  stands  for  trial  de  novo.35     But  where  a  statute  provides 

An  appeal  by  remonstrants  will  S3.  Murphy    v.    Board    of   Commis- 

be  dismissed  where  the  license  has  sioners,    7:5    Ind.   4s:;. 

long  since  expired  mid  the  questions  84.  Wilson     v.     Mathis,     145     Ind. 

presented    are    merely    abstract    and,  403,  44  N.  E.  486.     State  v.  Alliance, 

even  if  it  could  be  said  there  was  re-  65  Neb.  .VJl.  01    X.   \Y.   ::s7  :    Lydick 

versible    error,    no    practical    results  v.  Korner,  13  Neb.  10,  12  N.  W.  838. 

would  follow  from  a  reversal.     Brown  Nature  of  procedure  on  appeal 

v.   M -,.    i  Ind.    1909),  ^7    \.    E.  074:  —no    formal    pleadings.— In     Con- 

Brown  v.  Dicus  (Ind.  1909),  87  N..E.  necticut   it    is    decided    thai    the   pro- 
Tit;,  cedure  is  summary,  informal  and  dis- 

30.  McCreary  v.  Rhodes,  63  Miss.  tincl  from  thai  in  an  ordinary  civil 
308.  action  and  that   formal  pleadings  are 

31.  Ludwig  v.  State,  18  Ind.  App.  not  essential  and  oughl  nut  to  be  re- 
518,  4S  X.    I'..   390.  quired.     Burn's  Appeal,  76  Conn.  395, 

32.  People  i  t  rel.  Thomas  v.  Sack-  56  Ail.  611. 

ett,    15   App.   Div.    (X.   Y.)    290,   44  35.  California.— The    action    of    a 

X.   Y.  Supp.  593.  county  board   of  supervisors  denying 


330  LICENSING    BOARDS    AND    OFFICIALS.  [§    270 

for  an  appeal  from  the  action  of  a  licensing  board  but  fails  to 


an  application  for  a  license  can  not 
be  reviewed  by  certiorari.  Knox  v. 
Rainbow,  111  Cal.  539,  44  Pac.  175. 

Indiana. — In  Indiana  it  lias  been 
decided  that  appeals  from  a  board  of 
county  commissioners  to  the  circuit 
court  stand  for  trial  de  novo.  Head 
v.  Doehleman,  148  Ind.  145,  46  N.  E. 
585;  Ludwig  v.  State,  18  Ind.  App. 
518,  48  N.  E.  390. 

Iowa. — The  hearing  on  an  applica- 
tion by  a  registered  pharmacist  to 
buy  and  sell  intoxicating  liquors  is  a 
special  proceeding  and  in  the  absence 
of  a  provision  that  the  trial  therein 
shall  be  as  in  an  equity  case,  so  that 
on  appeal  the  court  is  authorized  to 
determine  the  question  de  novo  on  the 
record,  the  appellate  court  cannot 
properly  interfere  with  the  judgment 
of  the  trial  court  unless  there  has 
been  a  manifest  abuse  of  discretion. 
In  re  Moore  (Iowa  1908),  118  N.  W. 
879. 

Kentucky.— Under  the  Kentucky 
Statutes  of  1899,  allowing  an  appeal 
from  a  decision  by  the  county  court 
as  to  the  granting  of  a  license  the 
circuit  court  must  hear  the  case  on 
the  bill  of  exceptions  and  on  the  same 
evidence  that  was  before  the  county 
court  and  not  de  novo.  Hensley  v. 
Metcalfe  County  Court,  115  Ky.  810, 
74  S.  W.  1054;  See  also  Hodges  v. 
Metcalfe  County,  116  Ky.  524,  76  S. 
\Y.  381;  Meredith  v.  Commonwealth, 
25  Ky.  Law  Rep.  455,  76  S.  W.  8. 
And  in  a  recent  case  it  is  declared 
that  where  there  is  no  statute  or  rule 
of  practice  regulating  the  weight  that 
should  be  given  to  the  judgment  of  a 
lower  court  in  refusing  a  license  on 
appeal  the  court  should  consider  the 
evidence  and  from  it  determine  for 
itself  whether  or  not  the  licensing 
board  exercised  a  reasonable  discre- 
tion   in    reaching    its    determination. 


City    of    Louisville    v.    Gagen     (Ky. 
C.  A.  1909),  110  S.  W.  745. 

Massachusetts. — In  Massachusetts 
it  has  been  decided  that  where  it  is 
sought  to  review  the  act  of  selectmen 
in  granting  a  liquor  license  where  it 
is  claimed  that  they  have  acted  in 
violation  of  law  the  proper  remedy  is 
that  provided  by  statute  where  prem- 
ises are  used  for  the  illegal  keeping  or 
sale  of  liquors.  Cheney  v.  Coughlin 
201  Mass.  204.  87  N.  E.  744. 

Mississippi. — In  appealing  from  an 
order  granting  a  liquor  license  it  is 
decided  that  under  the  code  the  trial 
of  such  appeal  is  de  novo.  Ferguson 
v.  Brown,  75  Miss.  214,  21  So.  603. 

Missouri. — Where  in  a  proceeding 
by  certiorari  to  review  the  action  of 
the  county  court  in  granting  a  li- 
cense a  nunc  pro  tunc  judgment  is 
attacked  extraneous  evidence  is  not 
admissible  to  show  that  it  was  not 
supported  by  the  evidence  as  the  reci- 
tations in  the  judgment  are  conclusive 
until  set  aside  in  a  proper  proceeding 
for  that  purpose.  State  v.  Leonard 
(Kans.  City  C.  A.  1909),  100  Pac.  14. 
Nebraska. — On  the  hearing  of  an 
appeal  from  the  action  of  a  licensing 
board  in  granting  or  refusing  a  li- 
cense the  judge  should  exercise  his 
independent  judgment,  being  governed 
by  the  evidence  found  in  the  record 
alone  and  not  be  influenced  by  the 
finding  made  by  the  board.  Bennett 
v.  Otto,  68  Neb.  652,  94  N.  W.  807. 
In  this  state  a  final  order  by  a  dis- 
trict court  rendered  upon  appeal  from 
an  order  of  a  village  granting  or 
refusing  a  license  is  not  reviewable 
upon  appeal  by  the  Supreme  Court. 
Ealverstadt  v.  Berger,  72  Neb.  462. 
100   N.    W.    934. 

New  York. — Where  a  board  of  ex- 
cise commissioners  has  made  a  re- 
turn in  its  official  capacity  to  a  writ 


§  277] 


LICi:\SIN<;     HOARDS    AND    OFFICIALS. 


331 


provide  how  it  shall  be  taken  it  must  be  done  under  the  j>n.  Lsions 
of  the  general  law.36 

§  277.  Licensing  board  must  act  in  conformity  with  powers. 

The  licensing  authorities  in  granting  a  license  musl  acl  within 
the  powers  conferred  upon  them  and  if  they  fail  to  • 
their  authority  pursuant  to  the  law  conferring  it  the  li< 
is  void  and  no  protection  to  the  license.37  So  county  com- 
missioners who  have  only  authority  to  grant  licenses  for  traffic 
as  for  instance  to  wholesalers  have  no  authority  to  issue  a  license 
to  retail  such  liquors.38  And  where  the  authority  conferred  upon 
commissioners  to  grant  licenses  is  expressly  limited  to  residents 
of  the  town  or  city  where  the  business  is  to  be  conducted  the  au- 
thority is  a  special  and  limited  one  which  they  have  no  right  to 
exceed  by  granting  licenses  to  any  other  class  or  description  of 
persons  than  those  designated  in  the  statute.39     Again  where  the 


of  certiorari  it  is  error  to  receive 
and  consider  the  affidavits  of  the  in- 
dividual members  of  such  board  on 
the  final  hearing  and  determination 
of  the  certiorari.  People  ex  rel. 
Sprague  v.  Hoard  of  Excise  of  Town 
of  Moriah,  01  Hun  (N.  Y.)  94,  3G 
X.  Y.  Supp.  678. 

Pennsylvania. — In  Pennsylvania  it 
is  decided  that  where  the  record  of 
an  application  for  a  retail  liquor  li- 
cense Bhows  that  the  case  was  heard 
and  considered  by  the  lower  court, 
the  Supreme  Court  will  not  reverse 
an  order  refusing  a  license,  although 
the  lower  court  filed  no  opinion  and 
assigned  no  reason  for  its  action. 
Quinnton's  License,  169  Pa.  St.  115, 
32  Atl.  101.  following  Gross's  License, 
161  Pa.  St.  344,  29  Atl.  25.  See  also 
Appeal  of  Thomas,  169  Pa.  St.  Ill, 
32  All.  100  in  ease  of  an  application 
for    a    wholesale    license. 

An  appeal  bond  is  required  in 
Kentucky   from  an]  ho  desires 


to  prosecute  an  appeal  with  the  excep- 
tion of  the  county  attorney.  Hamil- 
ton v.  MeKinney,  23  Ky.  Law  R.  1341, 
65  S.  W.  2. 

Transcript  of  evidence  and 
proceeding  under  Nebraska  statute 
see  Clarke  v.  Foltyn  (Neb.  1908),  lis 
N.  W.  119:  Waugh  v.  Graham,  47 
Neb.  153,  (J(i  X.  W.  301. 

36.  Blair  v.  Kilpatriek,  40  Ind.  312. 

37.  Commonwealth  v.  Holland.  104 
Ky.  323.  47  S.  W.  216;  Cheney  v. 
Coughlin,  2(H  Mass.  2m.  s;  \.  i. 
744;  State  v.  Voight,  90  X.  C.  741; 
Commissioners  v.  Kane.  47  X.  C.  293. 
In  re  Hoyniak  License,  9  Kulp.   (Pa.) 

38.  State  v.  Xewcomb.  107  X.  C. 
900,  12  S.  E. 

«!>.  People  v.  Davis,  45  Barb.  (X. 
Y.)  494,  holding  a  license  granted  to 
a  resident  of  a  town  oilier  than  that 
where  the  proposed  business  was  to 
be   carried    Oil    was   void. 


332  LICENSING    BOAKDS    AND    OFFICIALS.  [§   278 

board  authorized  to  grant  permits  to  sell  intoxicating  liquors 
issues  such  a  permit  in  an  election  district  where  such  sale  would 
be  unlawful,  the  permit  is  inoperative  and  a  license  issued  thereon 
is  void.40  Xor  have  the  officers  composing  the  board  of  excise 
authority  to  insert  in  the  license  a  limitation,  restriction  or  con- 
dition which  is  repugnant  to  the  statute  and  if  they  do  so  it  is 
void.41  But  the  fact  that  a  board  of  aldermen  in  granting  a 
license  did  not  act  in  accordance  with  their  usual  modes  and  rules 
of  procedure  is  held  to  have  no  force  where  the  board  suspended 
its  rules  it  being  declared  that  it  is  within  the  power  of  a  deliber- 
ative body  to  suspend,  waive  or  modify  its  rules  of  procedure  if 
it  sees  fit.42 

§  278.  Power  of  board— time  of  granting. 

Where  a  licensing  board  can  only  grant  a  license  during  cer- 
tain hours  or  on  certain  days  it  can  only  exercise  its  power  in 
accordance  with  the  statute.43  And  a  statute  making  it  unlawful 
for  a  board  of  county  commissioners  to  grant  a  license  within 
two  vears  from  the  date  of  the  filing  of  a  remonstrance  against  the 


40.  Strickland  v.  Knight,  47  Fla.  granted  at  certain  stated  times  it  is 
327,  36  So.  363.  held  that  the  board  cannot  at  a  meet- 

41.  Matter  of  Breslin,  45  Hun  ing  held  at  another  time  lawfully 
I  N.  Y.  210,  holding  that  a  clause  in  suspend  its  rules  for  the  purpose  of 
a  license  absolutely  prohibiting  the  granting  a  new  license  at  once,  as 
sale  of  liquor  on  certain  days  named  this  cause  of  procedure  deprives  those 
in  it,  in  contravention  of  statute,  opposed  to  the  granting  of  the  license 
was  unauthorized  and  void.  of    a    reasonable    opportunity    to    be 

42.  Braconier  v.  Packard,  136  Mass.  heard.  Warren  Street  Chapel  v.  Ex- 
50.  cise  Commissioners,  56  N.  J.  L.  411, 

43.  State   v.   Kennedy,    1    Ala.    31;  29   Atl.   150. 

Tlichman  v.  Stoepel,  54  N.  J.  L.  486,  Calling  special   meeting.— A  li- 

24  Atl.  401  ;  People  v.  Albany  County  censing  board  may  have  authority  to 

Excise    Commissioners,    3    Park    Cr.  call  a  special  meeting  at  which  a  li- 

(X.  Y.)    501;    People  v.  Commission-  cense  may  be  granted  yet  there  should 

ers,    7    Abb.    Pr.    (X.    Y.)    34;    Swan  be  some  general  notice  thereof  given 

v.   Wilderson,   10   Okla.   547,   62  Pac.  to  enable  citizens  to  appear  and  object 

422.  if  they  should  so  desire.     McNeal  v. 

Where    the   rules    of   the    licensing  Burlington,  56  N.  J.  L.  443,  28  Atl. 

board   require  that   licenses  must  be  552. 


§  278] 


LICENSING     BOARDS    AND    OFFICIALS. 


333 


granting  of  a  License  to  such  applicant  ia  constitutional.44     Wh<  re 
action  must  be  taken  on  a  certain  day  the  board  must  act  while 
it  is  legally  in  session  and  authorized  to  act.46     In  some  -; 
the  power  is  conferred  upon  courts  to  granl   licenses  on  cei 
days  provided  foe  by  statute.40     In  Iowa  it   is  decided  thai   i 
the  exercise  of  the  courts'  discretion  the  time  for  hearing  an  appli- 
cation for  a  permit  to  sell  liquor  is  not  fixed  for  the  term 
which  it  is  filed,  nor  before  the  judge  in  vacation,  an  adjourn- 


A  change  in  the  form  of  municipal 
government  as  by  a  village  becoming 
a  city  does  not  alter  the  law  as  to 
the  period  within  which  a  license 
cannot  be  granted  after  a  remon- 
strance. Smith  v.  Walker  (Ind.  S. 
C.  1909),  89  N.  E.  862. 

44.  wik-ox  v.  Bryant,  156  Ind.  379, 
59  N.  E.  1049,  following  State  v. 
Gerhardt,  145  Ind.  439,  44  N.  E.  469. 

45.  Where  a  board  of  excise  com- 
missioners adjourned  without  day  and 
before  the  filing  of  an  application 
for  a  license  and  subsequent  on  the 
same  day  reconvened,  at  which 
meeting  the  application  was  filed,  and 
then  adjourned  to  a  day  certain  it  was 
held  that  the  second  meeting  on  the 
day  of  adjournment  was  unauthor- 
ized and  that  tlie  nlin»-  of  the  petition 
at  that  meet  in";  was  illegal,  and  that 
art  inn  taken  by  the  board  on  the  day 
to  which  it  adjourned  was  not  taken 
by  the  board  as  a  legally  ((instituted 
one.  McNaughton  v.  Board  of  Ex- 
cise, 5  Misc.  R.  (N.  Y.)  457,  26  X.  Y. 
Supp.  229. 

40.  In  Missouri  it  has  been  decided 
thai  the  county  court  has  jurisdiction 
under  the  statute  to  granl  a  license 
at  a  special  term.  State  v.  Mitchell; 
127  Mo.  App.  455,   105   S.  W.  655. 

In  New  Jersey  it  has  been  decided 
that  the  courl  of  common  pleas  dees 
not  lose  jurisdiction  to  grant  a  li- 
cense by  the   fad    thai    the   final  de- 


termination was  made  upon  a  day 
oilier  than  that  fixed  on  the  first  day 
of  the  term  to  which  the  matter  pend- 
ing the  hearing  upon  it  had  been  pub- 
licly and  regularly  adjourned.  Breese 
v.  Winters,  (N.  J.  L.  1909),  72  Atl. 
41.  The  statute  provided  "that  ap- 
plication for  license  under  this  act 
shall  be  made  on  the  first  day  of  the 
session  of  such  court,  and  the  said 
court  shall  on  that  day  or  on  some 
some  other  day  publicly  fixed  by  said 
court  on  said  first  day,  determine  in 
open  court  on  said  application,  by 
granting  or  refusing  the  same."  The 
court  said :  "  The  reasonable  con- 
struction of  this  language  is  that 
it  is  mandatory  in  its  requirement, 
that  action  shall  not  be  taken  by  the 
court  upon  any  day  other  than  the 
first  day  of  the  term  unless  the  mat- 
ter has  been  publicly  and  specifically 
set  for  such  day.  It"  the  matter  is 
not  taken  up  on  the  firsl  day  of  the 
term,  a  day  must  then  lie  publicly 
fixed  when  it  will  he  taken  up.  If 
on  the  day  so  fixed  the  matter  be 
not  taken  up,  the  court  loses  juris- 
diction unless  the  matter  he  publicly 
adjourned  to  a  day  specifically  fixed. 

If  the  matter  tie  taken  up  on  the 
first  day,  or  on  the  day  then  publicly 
fixed,  lmt  not  concluded  the  day  to 
which    it    is    continued    must    likewise 

he  publicly  fixed."    Per  Garrison,  J. 


3;;4  LICENSING     UOAEDS    AND    OFFICIALS.      [§§   279,280 

ment  of  the  term  will  not  ipso  facto  operate  as  a  dismissal  of  the 
application  or  deprive  the  court  of  jurisdiction.47 

§  279.  No  power  to  grant  license  to  sell  in  forbidden  locality. 

Authorities  vested  with  the  power  of  granting  licenses  must  act 
within  the  limits  of  the  power  conferred  and  where  a  license  is 
granted  to  sell  liquor  in  a  locality  where  the  sale  of  such  liquor 
is  forbidden,  the  license  is  invalid.48  So  where  a  license  is 
granted  for  the  sale  of  liquor  within  a  certain  distance  of  land 
owned  or  controlled  by  any  camp  meeting  association  and  used  for 
religious  purposes  and  the  granting  of  a  license  within  such  a 
distance  is  forbidden  by  statute,  the  license  will  be  void  as  granted 
in  excess  of  the  powers  conferred.49  And  in  a  recent  case  in 
Texas  it  is  decided  that  a  judgment  of  the  county  court  in  author- 
izing the  issuance  of  a  license  by  the  clerk  of  the  state  is  not  con- 
clusive of  a  person's  right  to  engage  in  the  sale  of  liquor  in  a  place 
where  such  sale  is  forbidden  by  law,  as  the  fact  whether  or  not 
such  sale  has  been  prohibited  is  not  required  to  be  stated  in  the 
petition  for  a  license  and  the  county  judge  has  no  jurisdiction  to 
determine  such  question.50  A  street  used  both  for  dwelling  houses 
and  business  purposes  does  not  come  within  the  terms  of  a  statute 
which  forbids  the  issuance  of  alicense  to  sell  in  a  "  purely  resi- 
dential "  part  of  a  town.51 

§  280.  License  board  cannot  delegate  power. 

In  many  states  the  sole  and  exclusive  power  to  issue  licenses  is 
conferred  upon  certain  boards  or  officials.52  Where  exclusive 
]  tower  to  so  act,  is  given  to  certain  officials  it  can  only  be  exercised 

JT.  Cox  v.  Burnliam,  120  Iowa  43,  50.  Paul  v.  State  (Tex.  Civ.  1907), 

94  N.   W.   265.  106  S.  W.  448. 

18.  State    v.   Mcllvenna,   21    S.    D.  51.  Hewritt's     Appeal,     76     Conn. 

189,  113  N.  W.  878.  685,   58   Atl.   231. 

49.  Sexton  v.  Board  of  Excise  Com-  52.  Schwoarman  v.  Commonwealth, 

missioners    (X.  J.  L.   1908),  69  Atl.  99   Ky.   29fi,    38    S.   W.    146:    Wilson 

470.  v.  Ross,  County  Assessor,  40  W.  Va. 

278,   21    S.   E.   868. 


§   U81]  LICENSING    BOARDS    AND    OFFICIALS.  ;;;;- 

by  those  upon  whom  it  is  conferred.68    And  a  license  to  be  of  any 
force  must  of  course  be  issued  by  the  authority  having  power  to 

issue  it.54  So  where  the  board  of  county  commissioni  i 
thorized  to  issue  a  license  and  to  exercise  their  discretion  in  the 
matter,  such  board  cannot  confer  upon  a  county  official,  such  as 
the  county  attorney,  either  as  such,  or  as  a  simple  agent,  the 
power  to,  or  impose  upon  him  the  duty  of,  issuing  licenses.55 
And  a  licensing  board  which  upon  the  hearing  of  an  application 
for  a  license  must  pass  upon  the  character  and  standing  of  the 
applicant  and  his  citizenship  cannot  delegate  these  functions  to 
another  person  or  corporation  by  issuing  the  license  in  the  name 
of  one  shown  not  to  be  the  real  party  in  interest,  upon  the  under- 
standing that  such  person  or  corporation  will  select  a  person  to 
conduct  the  business  under  the  license.56 

§  281.  Action  by  officers  de  facto. 

As  to  third  persons  whose  rights  are  dependent  upon  the  offi- 
cial acts  of  a  public  officer  it  is  sufficient  for  them  to  show  that 
he  was  an  officer  de  facto  and  this  principle  applies  to  one  who 
has  taken  out  in  good  faith  a  liquor  license  which  has  been  granted 
by  an  excise  commissioner  de  facto.57  So  where  a  board  of  license 
commissioners  was  removed  by  the  mayor  and  a  new  board  which 

58.  Thorn    v.    City   of   Atlanta.    77  57.  People    v.    McDowell,    70    TTun 

Ga.  661,  holding  that  where  authority  (N".  Y.)    1,  23  N.  Y.  Supp.  950.     See 

to  so  ad   is  conferred  upon  the  board  Montgomery   v.   O'Dell.   67    Hun    (N. 

of   commissioners  of  roads   a   license  Y.)    169,  22  N.  Y.  Supp.  412;   Ward 

issued   by   tin'   clerk   of  the  board   in  v.    State,    2    Coldw.    (Tenn.)    605,   91 

the  absence  of  the  commissioners  and  Am.  Dec.  270. 

without  their  express  order  and  with-  Where  in  a  suit  by  a  town  to 

out   their   knowledge  was   void.  recover  the  license  fee  required  by 

54.  Commonwealth  v.  Sweitzer,  129  a  town  ordinance  to  be  paid  it  was  an- 
Pa.  St.  644,  IS  Atl.  569.  swered  that  the  election  at  which  the 

55.  County  Commissioners  v.  Rob-  trustees    who    passed    the    ordinance 
iii-Mn.   li;  Minn.  381.  were    elected,    was    not    conducted    by 

56.  in  re  Application  of  Krug.,  72  the   then    trustees   as    b                  but 
Neb.    576,    101    X.    W.    242;    Tn    re  by    disqualified    persons,    the    ai 
Application  of  Tierney,  71   Neb.  704,  was  held  bad  on  the  ground  that  the 
99  N.  W.  518.  right  of  I                       to  exercise  their 


336  LICENSING    BOARDS    AND    OFFICIALS.  [§   282 

he  appointed  granted  a  license  to  an  applicant  it  was  held  that 
such  license  was  valid,  though  the  mayor's  order  of  removal  was 
subsequently  revoked,  as  the  new  board  when  appointed  was  a 
licensing  board  not  only  de  facto  but  de  jure.58  But  where  the 
acting  official  has  no  claim  of  or  color  of  title  to  the  office  it  being 
already  full  a  license  granted  by  him  will  be  of  no  force.59  And 
where  the  act  creating  an  excise  board  is  unconstitutional  the 
members  of  such  board  are  not  de  facto  officers  as  the  act  is  as  if 
it  had  never  been  passed  and  there  being  no  office  there  can  be  no 
officer  either  de  jure  or  de  facto  and  hence  an  act  done  by  such 
board,  such  as  the  granting  of  a  license  is  void.60 

§  282.  Ordinance  granting  license— duty  of  official  to  sign. 

Where  a  statute  requires  that  a  license  granted  by  the  board 
of  aldermen  shall  be  signed  by  a  certain  official,  the  duty  of  such 
official  is  a  ministerial  one  the  performance  of  which  may  be 
enforced  by  mandamus.61  So  where  the  power  to  regulate  the 
granting  of  licenses  is  vested  in  the  mayor  and  board  of  aldermen 
and  must  be  exercised  by  ordinance,  and  an  ordinance  provides 
what  an  applicant  must  do  to  obtain  a  license,  one  of  the  requisites 
being  the  obtaining  and  presenting  of  a  petition  which  it  is  the 
duty  of  the  board  to  pass  upon  as  to  its  sufficiency,  if  the  board 
of  aldermen  orders  that  a  license  be  issued,   the  mayor,  whose 

office  could  not  be  questioned  collat-  a  direct  proceeding  for  that  purpose, 

erally   and   the   answer    did   not   neg-  and  that  a  license  issued  by  an  excise 

ative  the  fact  that  they  were  trustees  commissioner  elected  to  fill  such  sup- 

de  facto.    Redden  v.  Town  of  Coving-  posed  vacancy  and  by  one  of  the  three 

ton.   2!)   Ind.    118.  commissioners  confers  no  right  to  sell 

•"".s.  Taber  v.  City  of  New  Bedford,  liquors  as  the  office  was  already  full 

177  Mass.   107,  58  N.  E.  640.  and  the  one  subsequently  elected  had 

59.  In  New  York   it  has  been  de-  even  no  claim  or  color  of  title  to  the 

cided   that    the    failure   of   an    excise  office.     Cronin  v.  Stoddard,  97  N.  Y. 

commissioner  duly  elected  to  file  the  271. 

bond  required  of  him  does  not  create  60.  Flancher  v.   Camden,   56  N.  J. 

a    vacancy    but    affords    at    the    most  L.  244,  28   Atl.  82. 

only  a  cause  for  a   forfeiture  of  the  «*•  Braconier  v.  Packard,  136  Mass. 

office   which   can   only   be   effected   by  50. 


§§    L'S;{,  1'Slj      LICKNSINd     HOARDS    AND    OFFICIALS.  3;J7 

duty  to  sign  the  same  is  merely  ministerial  cannot  refuse  to 
perform  bis  duty  on  the  ground  that  the  petition  was  insuffi- 
cient.02 

§  283.  Clerks  should  not  depart  from  order  of  court  in  issuing. 
Where  the  granting  of  a  license  by  a  court  is  a  judicial  act  the 
clerk  in  issuing  such  license  has  no  right  to  depart  from  the 
terms  of  the  order  directing  its  issuance.  In  such  a  case  the 
order  of  the  court  is  the  real  permit  to  sell  and  not  the  certificate 
given  by  the  clerk.63 

§  284.  Refusal  for  violation  of  law. 

Where  the  licensing  board  is  vested  with  discretion  in  regard 
to  the  granting  or  refusing  of  licenses  it  is  no  abuse  of  discretion 
to  refuse  a  license  to  one  who  is  shown  to  have  committed  viola- 
tions of  the  law  in  the  past.64  In  some  states  provision  is 
made  by  statute  as  to  the  refusal  of  a  license  where  the  appli- 
cant is  shown  to  have  violated  the  law  within  a  certain  time 
prior  to  his  application.65     Upon  the  question  of  refusal  of  a 


62.  State  v.  Russell,  131  Mo.  App. 
G38,   110   S.  W.  667. 

63.  State  v.  Brown,  135  Iowa  40, 
109  N.  W.  1011,  so  holding  in  the  case 
of  a   druggist. 

64.  Caudill  v.  Commonwealth,  23 
Ky.  Law  Rep.  2139,  66  S.  W.  723. 

65.  In  Kentucky  under  a  statute 
providing  that  the  application  must 
show  thai  tin-  applicant  has  not  kept 
a  disorderly  house  within  a  certain 
period  of  time  it  is  held  that  it  is 
not  sufficient  evidence  within  the 
meaning  to  justify  a  refusal  to  grant 
the  license  that  he  kept  a  disorderly 
house  on  one  day  by  permitting  dis- 
orderly persons  engaged  in  elect  inn 
frauds  to  assemble  about  his  place  of 
business  on  election  day  and  that  he 
opened  his  Baloon  on  that  day  in  vio- 
lation of  law.     City  of   Louisville  v. 


Hendricks  (Ky.  C.  A.  1909),  116  S. 
W.    747. 

The  action  of  a  license  board  in 
issuing  a  license  to  a  saloon  keeper 
does  not  condone  the  offense  of  keep- 
in-  a  disorderly  house  so  as  to  pre 
vent  the  licensing  board  from  sulise- 
quently  refusing  to  grant  a  license 
on  the  ground  that  lie  lias  kept  a  dis- 
orderly house  within  the  period  which 
the  statute  declares  will  authorize  a 
refusal  of  a  license.  City  of  Louis- 
ville v.  Hendricks  (Ky.  c.  A.  1909), 
11 6  S.  W.  747. 

In  Nebraska  it  lias  been  held 
proper  under  the  law  in  force  thereto 
refuse  a  license  to  one  who  had  in  the 
previous  year  violated  the  law  by 
obstructing  his  doors  or  windows  by 
screen-.  Minds  or  other  articles.  Bol- 
ton v.  Becker  (Neb.  1908),  110  X.  W. 


338  LICENSING    BOARDS    AND    OFFICIALS.  [§   284 

license  for  violation  of  the  law  it  is  decided  that  one  who  has 
repeatedly  violated  the  law  as  agent  of  another  is  properly  re- 
fused a  license  for  the  same  place  after  the  license  to  the  prin- 
cipal has  been  revoked.66  And  a  license  to  one  to  sell  as  a 
druggist  is  properly  refused  where  it  appears  from  the  evidence 
as  to  past  sales  by  him  while  pretending  to  carry  on  the  druggist's 
business  that  he  was  not  a  druggist  in  good  faith  but  had  assumed 
the  name  or  business  for  the  purpose  of  retailing  liquors.67  But 
though  past  violations  of  the  law  by  an  applicant  for  a  license 
may  be  shown,  yet  it  is  decided  that  they  may  not  be  sufficient 
to  as  a  matter  of  law  render  him  an  unsuitable  person  as  it  might 
appear  from  other  evidence  that  they  were  committed  under  such 
circumstances  of  palliation,  mistake,  or  deception  as  to  clearly 
show  no  intentional  or  deliberate  transgression  of  the  law.68 
And  where  discretion  is  vested  with  the  court  to  grant  or  refuse 
a  license  it  does  not  lose  its  jurisdiction,  in  the  absence  of  a 
statute  to  that  effect,  by  the  fact  that  the  applicant  violated  the 
law  during  the  preceding  year  by  a  sale  to  minors.69  In  con- 
siderating  an  application  for  a  license  the  absence  of  a  prosecu- 
tion and  conviction  for  any  infraction  of  the  penal  laws  of  the 

14.     And   when   it   is  proven  by  un-  npon    the    hearing    before    an    excise 

contradicted   evidence  that   an  appli-  board,  a  witness  testified  to  circum- 

cant  for  a  license  during  the  preced-  stances   which,   if  true,   would   estab- 

ing    year    permitted    petty    gambling  lish  the  sales  of  liquor  by  the  appli- 

in  a  place  of  business  in  his  control,  cant  to  a  minor  during  the  preceding 

and    even    on    one    occasion    exhibited  year  and  the  board  refused  either  to 

extremely  lascivious  pictures,  it  is  the  require   the    witness   to    disclose    the 

duty  of  the  licensing  board  to  reject  name  of  the  minor  or  to   strike  out 

his   petition.      Bolton    v.    Hegner,    82  his  testimony  it  was  held  to  be  error. 

Neb/  772,     118    N.    W.    1096.      And  Batten  v.   Klamm,  82  Neb.   379,   117 

where    on    the   hearing    of    a    remon-  X.  W.  991. 

-trance  against  the  granting  of  a  liq-  6G-  Rutherford's  License,  2  Pa.  Co. 

uor  license  it  is  satisfactorily  proven  Ct.  Rep.  78. 

that  the  applicant   lias  within  a  year  67.  Evans     v.     Commonwealth,     95 

sold    or    given    to    a    minor    malt    or  Ky.  231,  24  S.  W.  632. 

spirituous  liquors,  he   is  not  entith id  68.  Smith's  Appeal,   65   Conn.   135, 

to  a  license  and  his  application  should  31    All.    529. 

he    denied.       In     re    Phillips.     (Neb.  69.  Brcese    v.    Winters     (N.    J.    L. 

1908),   118  N.  W.   1098.     But  where  1909),   72   At!.   41. 


S§  285,286]     LICENSING    BOARDS    AND    OFFICIALS.  :;:;;t 

state  is  entitled  to  some  weight  as  tending  to  show  that  the  ap- 
plicant has  observed  the  law.70 

§  285.  Refusal  for  violation  of  law — effect  of  connection  or 
decree. 
Violations  of  the  law  which  will  authorize  a  refusal  to  grant 
a  license  may  be  established  by  the  records  of  the  court  showing 
the  conviction  of  the  applicant.71  And  a  decree  by  consent  "  in 
a  spirit  of  compromise  "  and  to  avoid  litigation  to  let  an  injunc- 
tion against  the  illegal  sale  of  liquors  issue  is  conclusive  against 
him  on  a  subsequent  application  for  a  license.72  But  a  conviction 
from  which  an  appeal  was  taken  and  the  complaint  was  sub- 
sequently discontinued  in  the  appellate  court  does  not  disqualify 
an  applicant.73  And  a  judgment  of  guilty  rendered  by  a  justice 
of  the  peace  from  which  the  defendant  has  appealed  is  not,  pending 
such  appeal,  a  "  conviction  "  within  the  meaning  of  the  liquor 
law.74 

§  286.  Qualifications  of  members  of  board. 

A  person,  although  he  may  be  competent  otherwise  to  act  as  a 
member  of  a  licensing  hoard,  may  in  the  particular  case  by  some 
acl  of  his  be  disqualified  from  so  acting.  Thus  one  who  signs  a 
petition  for  a  license  cannot  as  a  member  of  the  licensing  board, 


70.  City    of    Louisville    v.    Gagen  Iowa  Code  providing  thai   no  license 
(Ky.  C.  A.  1909),  lit',  S.  \Y.  745.  shall  bo  granted  t<>  one  who  1ms  been 

71.  Livingston    v.    Corey,    33    Neb.  adjudged   guilty   of   any   violation   of 
3(i(i.  50  X.  W.  263.  the  laws  relating  to  intoxicating  liq- 

72.  in  re  Thoma,  117  Iowa  275.  90  uors  within  two  year-  Deri  preceding 
X.  W.  581.  the  making  of  his  application.     In  re 

A      judgment      finding     defendant  Application    of    Wilhelm,    124    Iowa 

guilty    of    violating    his    liquor    per-  380,  100  X.  W.  44. 

mil.  whetheT  entered  by  confession  or  73.  Horton  v.  License  Cominission- 

in  v. 'til. 'in, Mit  of  criminal  or  civil  pro-  era  of  Central  Falls.  19  R.  I.  650,  35 

ceedings  growing  ou1  of  such  violation  Atl.  962. 

renders  him   ineligible  to   receive  an-  7I-  Smith's   Appeal,  Go  Conn.   135 

other  permit  for  two  years  under  the  31  Atl.  529. 


340  LICENSING    BOARDS    AND    OFFICIALS.  [§   287 

act  upon  such  petition  as  he  cannot  be  both  a  petitioner  and  a 
judge,  and  no  valid  license  can  be  issued  where  without  his  vote 
the  board  is  equally  divided.75     And  where  a  member  of  a  city 
council  which  is  to  pass  upon  the  petition  for  a  license  to  two  per- 
sons, signed  such  petition  and  upon  discovering  that  his  signa- 
ture would  disqualify  him  from  acting  on  the  application,  erased 
his  name  and  another  petition  was  drawn  up  without  his  signature 
asking  for  a  license  for  one  of  such  persons,  it  was  decided  that 
he  was  disqualified  by  such  signature  and  that  the  disqualification 
was  not  removed  by  the  erasure  and  the  withdrawel  of  the  peti- 
tion.76    Also  one  who  thinks  it  is  evidence  of  immorality  for  one 
to  engage  in  the  sale  of  liquors  is  not  a  competent  person  to  sit 
as  a  juror  upon  the  trial  of  an  application  for  a  license  to  sell 
intoxicating  liquors.77     And  it  has  been  decided  that  in  granting 
or  refusing  a  license,  county  commissioners  act  not  as  judges  but 
as  administrative  officers,  and  may  consider  all  information  which 
comes  to  them  not  only  through  the  public  hearings  but  such  as 
may  be  derived  from  the  personal  knowledge  and  investigation 
of  each,   and   the   absence   of   one   commissioner   from    a   public 
hearing  does  not  disqualify  him  from  taking  part  in  the  deci- 


sion. 


§  287.  Liability  of  members  of  board. 

The  action  of  the  members  of  a  licensing  board  in  passing 
upon  an  application  for  a  license  is  in  its  nature  judicial  at  least 
to  the  extent  of  relieving  them  for  liability  for  damages  for  a 


7r».  Powell    v.   Egan,   42    Neb.   482,  1909),   120  N.  W.   159. 

00    X.    W.    932;    Foster   v.   Frost,   25  77.  Fletcher     v.     Crist,     139     Ind. 

Neb.  731,  41  N.  W.  647,  citing  State  121,   38  N.  E.  472.     See  also  Chand- 

v.  Kaso,  45  Neb.  007,  41  N.  W.  558;  ler   v.   Ruebelt.   83    Ind.    139;    Keiser 

State  v.  Weber,  20  Neb.  407,  30  N.  W.  v.  Lines,  57   Ind.  431. 

53]  :  Vanderlip  v.  Derby,  19  Neb.  165,  78.   Hewitt's  Appeal,  70  Conn.  685, 

20  X.  W.  707.  58  Atl.  231. 

70.  Rosenberg     v.     Robrer      (Neb. 


§   287]  LICENSING    BOAEDS    AND    OFFICIALS.  341 

refusal  to  issue  the  license.79  And  such  officials  arc  not  liable 
criminally  for  mere  mistakes.80  They  may,  however,  be  indicted 
for  wilful  and  corrupt  conduct  in  respect  to  the  granting  of  a 
license.81 


7f>.  Halloran  v.  McCuIIough,  68 
Ind.  179;  Sargent  v.  Little,  72  N.  H. 
555,  58  Atl.  44;  People  v.  Jones,  54 
Barb.   (N.  Y.)   311. 

A  city  is  not  liable  for  the  act9 
of  local  licensing  officials.  McGinnis 
v.  Medway,  176  Mass.  67,  57  N.  E. 
210. 


SO.  People  v.  Jones,  54  Barb.  (N. 
Y.)   811. 

81.  People  v.  Norton,  7  Barb.  (N. 
Y.)  477:  People  v.  Woreley,  1  N.  Y. 
Supp.  748 ;  Attorney  General  v.  Jus- 
tices, 27  N.  C.  315. 


342  EIGHTS    UNDER    LICENSE.  rj   288 


CHAPTER  XIII. 

RIGHTS  UNDER  LICENSE. 

Section  288.  Terms  of  license  as  limiting  right. 

289.  When  license  takes  effect. 

290.  Duty  to  obey  law — as  to  employes. 

291.  Licensee  may  sell  by  agent. 

292.  Personal  representatives  of  licensee  no  rights  under. 

293.  As  to  place  of  sale. 

294.  Where  license  board  prescribes  unauthorized  hours. 

295.  License  to  firm — to  member  of. 
290.  License  to  officer  of  corporation. 

297.  Duration  of  license. 

298.  License  not  assignable. 

299.  License  tax  certificate  assignable  in  New  York. 

300.  Transfer  of  license  in  Pennsylvania. 

301.  License  as  subject  of  levy  and  sale. 

302.  Rights  of  licensee  as  to  stock  and  fixtures. 

§  288.  Terms  of  license  as  limiting  rights. 

A  license  in  so  far  as  it  legally  expresses  the  rights  which  the 
licensee  possesses  by  virtue  thereof  is  a  limitation  upon  him  in 
respect  to  sales  thereunder  and  he  must  confine  himself  in  the 
exercise  of  these  rights  to  the  terms  of  the  license.1  Where  there 
is  a  classification  as  to  the  sales  of  liquor  and  different  licenses 
are  issued  for  the  different  classes,  a  person  who  obtains  a  license 
to  sell  liquor  according  to  a  certain  class  must  confine  himself 
in  makno;  his  sales  to  the  class  to  which  he  is  restricted  by  his 
license.2     So  one  having  no  authority  to  sell  liquors  for  use  as  a 

1.  Benson  v.  Moore,  15  Wend.    (N.  Separate  license  for  distilling 

Y.)   200.  and  selling.— Where  the  statute  reg- 

2.  Commonwealth  v.  Mandeville,  ulating  the  license  tax  provides  for  a 
142  Mass.  469,  8  N.  E.  327.  separate  license  in  different  amounts 


§   289]  RIGHTS    UNDER    LICENSE.  ;;j;; 

beverage  cannot  sell  them  for  that  purpose.3  And  where  a  person 
was  licensed  to  sell  intoxicating  liquor  only  for  medicinal, 
mechanical  and  chemical  purposes,  it  was  held  that  he  had  no 
ground  of  exception  to  a  charge  that  his  license  gave  him  "  no 

right  to  keep  for  sale  or  to  sell  intoxicating  liquors  to  be  used 
as  a  beverage  and  gave  no  right  to  sell  or  to  keep  for  sale  intoxi- 
cating liquors  to  be  drunk  on  the  premises."  4  So  where  the  license 
specifies  in  what  quantities  sales  may  be  made,  the  licensee  in 
making  sales  must  conform  to  the  terms  of  the  license  and  where 
he  exceeds  the  right  conferred  thereby  he  will  be  liable  as  for 
selling  without  a  license.5  In  New  York  it  is  decided  that  the 
traffic  must  in  all  cases  be  confined  to  that  particular  line  and 
character  of  traffic  set  forth  in  the  application  itself  and  that  the 
application  and  certificate  together  must  be  interpreted  to  mean 
a  license  to  traffic  in  liquor  only  in  the  field  and  to  the  extent 
declared  in  the  application,  it  being  immaterial  that  the  traffic 
is  not  restricted  by  the  terms  of  the  certificate.6 

§  289.  When  license  takes  effect. 

So  far  as  the  rights  of  the  licensee  are  concerned  a  license  takes 
effect  from  the  date  of  its  issuance.7  And  the  officials  designated 
to  grant  licenses  have  no  power  to  grant  one  to  operate  re- 
trospectively so  as  to  cure  a  past  offense.8     And  a  license  which 


for  distilling  and  selling,  the  two  1ms-  4.  Commonwealth     v.     Mandeville, 

inesses  being  clearly  separated,   it    is  142  Mass.  469,  8  N.  E.  327. 

decided   thai    under  a   license  to  dis-  •">•  Hainline    v.    Commonwealth,    1.3 

till  there  is  no  authority  to  3ell,  and  Bush   (Ky.)   350. 

especially  not    in   a   county  which   lias  <»•   Matter      of      Barnard.        Tv      rr 

voted  prohibition.     Franklin  v.  state  Smith,  48  App.  Div.   (X.  Y.)   423.  63 

(Ala.   1908),    is  So.  348.  N.  Y.  Supp.  255. 

Wholesaler. — License    statute    de-  ~.  Keiser    v.    State,    7S    Tnd.    430; 

fining    construed.      Jones    v.    Yokum  Commonwealth    v.   Welch,    144   Mass. 

(S.  D.  1909),  123  N.  W.  272.  356,    11    V    E.  423. 

3.  State   v.    Adams,   20    Iowa    486;  s-  Edwards  v.  state.  22  Ark.  253; 

Commonwealth    v.    Frost,    155    Mass.  Miles   v.    State,    33    [nd.   206;    Brown 

273.  34  N.  F.  334.  v.  State,  27  Tex.  335. 


344  RIGHTS    UNDER    LICENSE.  [§§   290,291 

has  been  antedated  will  not  legalize  sales  previously  made.9  So 
in  a  case  in  New  York  it  is  said  that  where  a  sale  is  not  lawful 
when  made  a  license  cannot  have  a  retroactive  effect  so  as  to 
legalize  such  sale.10  So  it  is  declared  that  a  license  should  bear 
the  date  of  the  day  when  issued,  takes  effect  from  that  date,  and 
does  not  relate  back  to  the  order  of  the  board  of  commissioners 
granting  the  license,  though  so  dated,  so  as  to  legalize  sales  made 
between  the  date  of  the  order  and  the  issuing  of  the  license.11 
Again  where  sales  of  liquors  are  expressly  forbidden  by  statute, 
unless  by  one  duly  licensed,  there  can  be  no  recovery  for  the  price 
of  liquors  sold  by  one  between  the  time  he  petitioned  for  a  license 
and  the  date  the  license  was  granted.12  But  the  fact  that  a  license 
antedates  the  date  on  which  it  was  ordered  does  not  affect  its 
validity,  as  in  such  a  case  the  license  takes  effect  from  the  date 
of  its  delivery  and  not  from  its  date.13 

§  290.  Duty  to  obey  law — as  to  employes. 

A  licensee  cannot  evade  his  responsibility  by  hiring  a  com- 
petent and  careful  bartender  and  giving  him  instructions  to  obey 
the  law,  but  it  is  his  duty  to  use  proper  care  and  diligence  to  see 
that  the  business  is  carried  on  in  the  manner  which  the  law 
requires,  and  whether  such  diligence  has  been  used  by  him  is  a 
question  of  fact.14 

§  291.  Licensee  may  sell  by  agent. 

Under  a  license  granted  to  the  owner  of  liquor,  his  agent,  or  one 
in  his  employ,  may  sell,  and  such  person  will  not  be  responsible 
for  selling  without  a  license.15     But  though  a  licensee  may  sell 

».  State   v.   Mancke,    IS    S.   C.   81;  13.  State   v.    Leonard    (Kans.   City 

Brown  v.  State,  27  Tex.  335.  C.    A.    1!)09),    116    S.    W.    14,    citing 

i<>.  Kingston  v.  Osterhoudt,  23  Hun  State  v.   Hughes,   24  Mo.   147;    State 

(N.   Y.)    00.  v.  Tate,  07  Mo.  488. 

11.  Keiser   v.    State,    78   Tnd.    430.  14.  Policy   v.   Wills,    141    Ind.   688, 

12.  Bolchic   v.    Randall,    107    Mass.  41  N.  E.  354. 

121.  15.  State    v.    Keith,    37    Ark.    96; 


§   292]  RIGHTS    UNDER    LICENSE.  345 

by  his  servant,  or  barkeeper,  the  selling  must  be  under  hie  con- 
trol.18    As  is  declared  in  a  case  in  Nebraska,  a  license  to  sell 

intoxicating  liquors  is  in  the  nature  of  a  personal  trust,  and  tin- 
applicant  for  such  privilege  must  be  a  person  able,  willing  and 
competent  to  carry  out  such  trust,  and  not  delegate  it  entirely 
to  others  whose  character  may  not  be  such  as  the  law  requires 
of  the  licensee.17  And  in  a  recent  case  in  Indiana,  it  is  decided 
that  a  license  to  sell  intoxicating  liquor  will  not  protect  an  em- 
ployee of  the  licensee  from  liability  for  sales  made  by  him  as 
such  within  the  period  for  which  the  license  was  granted  after 
the  licensee  has  permanently  changed  his  residence  to  a  county 
other  than  that  in  and  for  which  the  license  was  granted.18  And 
also  in  Texas  it  is  decided  that  a  non-resident  of  a  state  cannot 
violate  the  laws  of  the  state  with  impunity  by  means  of  an  em- 
ployee and  the  latter  will  be  regarded  as  a  person  "  engaged  in 
the  business "  of  liquor  selling  within  the  meaning  of  the 
statute.19  And  where  the  contract  is  alleged  to  be  one  of  employ- 
ment and  the  evidence  in  the  case  shows  not  the  creation  of  an 
agency  between  the  person  in  charge  and  the  licensor  but  rather 
a  sale,  the  license  of  the  vendor  is  no  protection.20 

§  292.  Personal  representatives  of  licensee  no  rights  under. 

The  right  to  carry  on  the  liquor  business  has  been  held  to  be 
in  the  nature  of  a  license  to  the  party  who  complies  with  the 

Reiser  v.  State,  58  Ind.  370;  Runyou  See   Krant    v.    State.   47    Ind.    519, 

v.    State,    52    Ind.    320;     Pickens    v.  holding  that  one  who  has  obtained  a 

State,   20    Ind.    116;    State  v.   Hunt.  permit  to  sell  intoxicating  liquors  and 

20   Kan.    762j    People  v.    BufTum,   27  who    afterward    voluntarily    removes 

Hun    (N.    V.)    216.  from  the  state  by  the  act  of  removal 

16.  Commonwealth  v.  Branamon,  8  forfeits  and  abandons  his  rights  un- 
B.  Mon.   (Kv.)   374.  ('('r   "K>   il(,'"iit    and   can    not    volun- 

17.  /„  re  Application  of  Krug.,  72  ,:,ri,-v    thereafte*    continue    the    bus- 
Neb.  570,  101  N.  W.  242,  quoting  from  inesa  U>    meana  "'"  an  a-"nt- 
Watkins  v.  Grieser,  11   Okla.  302,  66  ,!>'  La  Norris  v.  State,  13  Tex.  App 


33,  so  holding  in  reference  to  a  con- 
ductor  in   charge  of  a    Pullman   car. 
is.  State  v.   Dudley,  33  Ind.  App.  ....    ,,     ..       '       .      iA_  .    .    _._    , 

-•>•   Eeath  v.  State.   10. >  Ind.  342.  4 


Pac.  332.     Per  Burford,  C.  J. 
is.  State  v.   Dudley,  33   In 

640,71   N.    E.   075.  N<    E~9~ 


340 


RIGHTS    UNDER    LICENSE. 


[§   293 

statute  which  cannot  pass  over  to  the  personal  representatives  of 
the  party  holding  it  and  is  not  an  asset  of  his  estate.21  And  in 
the  absence  of  a  statute  permitting  it,  the  legal  representatives  of 
a  deceased  licensee  cannot  recover  any  part  of  the  amount  paid 
for  the  liquor  license  because  of  the  latter's  death  before  the 
expiration  of  the  license.22  But  in  an  early  case  in  Wisconsin 
it  is  decided  that  an  administrator  need  not  take  a  license  for  the 
sale  of  spirituous  liquors,  to  enable  him  to  dispose  of  such  liquors 
belonging  to  the  estate  in  payment  of  a  debt  or  otherwise.23 


§  293.  As  to  place  of  sale. 

One  license  will  not  authorize  the  person  or  persons  licensed 
to  conduct  the  business  in  more  than  one  place,  or  generally  at 
any  other  than  that  specified  in  his  license  or  application  there- 
for.24    So  in  a  recent  case  in  Alabama  it  was  held  that  a  license 


21.  People  v.  Sykes,  96  Mich.  452, 
56  N.  W.  12,  holding  that  an  admin- 
istratrix of  her  husband's  estate  could 
not  carry  on  the  business  of  liquor 
selling  in  which  he  was  engaged  with- 
out first  paying  the  tax  and  giving 
a  new  bond.  Grimm's  Estate,  181 
Pa.  St.  233,  37  Atl.  403.  See  also 
Mueller's  Estate,  190  Pa.  St.  601,  42 
Atl.  821;  Bucks  Estate,  185  Pa.  St. 
57,  39  Atl.  821,  64  Am.  St.  R.  816; 
Aschenbach  v.  Carey  (Pa.  1909),  73 
Atl.  435;  Blumenthal's  Petition,  125 
Pa.  St.  412,  18  Atl.  395. 

22.  Wood  v.  School  Dist.  80  Neb. 
722,  115  N.  W.  308. 

23.  Williams  v.  Troop,  17  Wis.  463. 

24.  Commonwealth  v.  Holland,  104 
Ky.  323,  47  S.  W.  216;  State  v. 
Walker,  16  Me.  241  ;  Commonwealth 
v.  Estabrook,  10  Picks.  (Mass.)  293; 
Mason  v.  Severance,  2  N.  H.  501 ; 
People  v.  Davis,  45  Barb.  ( N.  Y. )  494. 

In  the  case  of  a  license  to  a 
distiller  who  is  not  required  by  the 
statute  to  set  forth  in  his  application 
the    particular    place    at    which    the 


business  is  proposed  to  be  conducted 
it  has  been  decided  in  Pennsylvania 
that  he  may  sell  at  any  one  place 
within  the  county.  Britton  v.  Com- 
monwealth, 105  Pa.  St.  311. 

A  brewer's  license  under  a  stat- 
ute authorizing  a  person  under  such 
a  license  to  sell  at  wholesale  when 
taken  out  in  one  county  will  nermit 
the  licensee  to  sell  at  wholesale  in  any 
county  in  the  state  without  obtaining 
a  license  for  that  purpose  in  each 
county.  State  v.  Capitol  Brewing  & 
Ice  Co.   (Ala.  1909),  50  So.  312. 

Transfer  authorized  by  stat- 
ute.— The  Connecticut  statute  author- 
izing the  county  commissioners  to 
permit  the  removal  of  a  licensed 
dealer  from  one  place  to  another  in 
the  same  town  does  not  purport  to 
empower  the  commissioners,  to  hear 
and  determine  an  application  by  an 
unlicensed  person  for  a  removal  per- 
mit or  transfer  of  an  existing  license 
from  one  place  to  another.  D'Amato's 
Appeal,  80  Conn.  357,  68  Atl.  445. 

In  New  Jersey  a  license  to  sell  in- 


e   293]  RIGHTS    UNDER    LICENSE.  347 

to  sell  liquors  in  a  certain  saloon  < I i <  1  not  authorize  the  Bale  by  the 
licensee  of  such  liquors  in  or  at  his  house,  half  a  mile  away, 

from  such  saloon.25  And  a  license  issued  to  a  man  to  keep  a 
saloon  at  a  certain  designated  number  does  not  authorize  him  to 
maintain  as  many  bars  as  he  desires  in  different  parts  of  a  build- 
ing located  at  such  number  and  which  are  in  no  way  connected.'-"1 
ISTor  is  a  license  to  sell  liquors  at  one  place  a  defense  to  an  in- 
dictment for  selling  them  at  a  different  place,  although  the  two 
bars  are  in  adjoining  buildings  and  there  is  a  communication 
between  them.27  And  a  license  to  a  person  to  sell  liquor  in  con- 
nection with  the  business  of  keeping  a  hotel  does  not  authorize 
him  after  the  hotel  has  been  burned  and  not  rebuilt,  to  sell  liquor 
in  another  building  located  upon  the  same  premises  upon  which 
which  the  hotel  was  located,  as  such  a  selling  is  not  in  connection 
with  the  business  of  keeping  a  hotel.28  And  where  though  the 
license  did  not  contain  the  description  of  the  property  where  the 
licensee  was  authorized  to  sell  liquor,  yet  where  the  verified 
petition  for  the  license  and  the  order  of  the  court  instructing  its 
issuance  did  particularly  describe  the  premises,  it  was  held  the 
licensee  had  no  authority  to  sell  at  any  other  place  than  that  so 
described.29    Nor  does  a  general  license  to  retail  spirituous  liquors 

toxicating    liquors    in    cities    of    the  27.  State    v.     Fredericks,     16     Mo. 

second    class    under  the   statute   may  382. 

be    transferred    by    the    licensing    au-  28.  People   v.    Corey    (N.    Y.    App. 

thorities,  not  only  from  one  person  to  Div.   1909),   lis   \".   V   Supp.  23. 

another  bul   from  one  location  to  an-  Under   a    license  to   one  to  keep  a 

other.     Henkel   v.   Boy,   74   X.  J.   L.  tavern  in  "  a  brick  house  "  it  has  been 

56.  64  Atl.  960.  decided   thai   the  licensee  may  use  a 

As  to  right  of  appeal   from   de-  room  adjoining  it  which  is  constructed 

cision    refusing    transfer    sec    Wake-  of   wood    and    nol    connected    by    any 

man's   Appeal,   74   Conn.    313,   50   Atl.  doorway  with  his  main  building,  pro- 

733;   Lester  v.   Price,  83   \'a.   648,   3  vided   the    separate    room    constitutes 

S.  E.  529.  in   good   faith   a    pari   of   the   tavern. 

25.  Johnson  v.  State.  152  Ala.  Gl.  Gray  v.  Commonwealth,  9  Dana  (Ky.) 
44  So.  .")."».">.  300,  35  Am.  Dec.   136 n. 

26.  Malkan  v.  City  of  Chicago,  217  29.  United     States    v.     Powers,     1 
111.   471.   7:.   V    E.   548,   2    L.   R.   A.  Alaska    ISO. 

(N.  S.)   488  n. 


348 


EIGHTS    UNDER    LICENSE. 


[§  293 

-within  a  county  authorize  the  sale  of  such  liquors  within  an 
area  within  such  county  which  is  covered  by  a  special  prohibitory 
law.30  But  while  a  liquor  dealer  may  by  his  license  be  re- 
stricted as  to  where  he  may  carry  on  his  business,  having  refer- 
ence to  the  location  of  his  place,  yet  under  the  right  given  him 
thereby,  it  is  decided  that  he  may  send  out  agents  in  the  state 
and  take  orders  for  goods  to  be  shipped  from  there  which  he  has 
in  stock  without  obtaining  a  license  from  the  authorities  of  each 
city  or  town  wherein  his  agents  have  made  contracts  of  sale.31 
And  in  New  York  it  has  been  decided  that  where  a  liquor  tax 
certificate  designates  a  particular  place  on  a  ball  ground,  the 
holder  is  not  confined  to  making  a  delivery  at  such  places,  but 
that  delivery  in  other  parts  of  the  ground  may  be  made  where 
such  delivery  is  an  incident  of  the  business  which  might  be 
carried  on  under  the  certificate.32      And  the  mere  removal  of  a 


30.  Barnes  v.   State,  49  Ala.   342. 

31.  Haug  v.  Gillett,  14  Kan.  140; 
See  also  McCarty  v.  Gordon,  10  Kan. 
35. 

Under  the  statutes  in  force  in 
Kentucky,  requiring  wholesale  liq- 
uor dealers  in  beer  to  have  a  license 
for  the  sale  thereof  by  wholesale, 
such  dealers  cannot  establish  an 
agency  at  one  point  in  the  state  and 
send  its  wagons  from  such  point  and 
sell  at  other  points  in  a  county  in 
which  the  local  option  law  is  in  force. 
Jung  Brewing  Co.  v.  Commonwealth, 
30  Ky.  Law  Rep.  267,  98  S.  W.  307. 

A  statute  providing  that  "no  per- 
son without  a  state  license  therefor 
shall  *  *  *  receive  orders  for  spiritu- 
ous liquors"  applies  to  one  who  as 
it  of  a  wholesale  druggist  receives 
an  order  for  such  liquors  in  another 
place  than  where  the  business  is  lo- 
cated. State  v.  Swift,  35  W.  Va.  542, 
14  S.  E.  135.  Compare  State  v. 
Iloja,  66  Conn.  259,  33  Atl.  917.  hold- 
ing that  a  soliciting  of  orders  by  an 


agent  was  authorized  by  statute. 

32.  Matter  of  Lyman,  160  N.  Y. 
96,  54  N.  E.  577,  affirming  40  App. 
Div.  46,  57  N.  Y.  Supp.  634,  wherein 
the  court  said:  "The  business  of 
trafficking  in  liquors,  authorized  by 
the  certificate  in  a  park  or  upon  pub- 
lic grounds  where  people  congregate 
on  special  occasions,  comprehends 
something  more  than  the  right  to  sell 
over  a  bar  at  a  designated  point  to 
such  persons  as  go  to  the  bar  to  be 
served.  It  fairly  includes  the  right 
of  the  holder  to  distribute  the  liquor 
in  glass  by  waiters  to  the  patrons  of 
the  public  place  where  the  bar  is  lo- 
cated. The  regulations  of  the  place 
may  provide  for  seating  the  public 
upon  stands  and  other  convenient 
places,  and  restrict  them  from  access 
to  Ihe  whole  grounds.  In  such  cases 
it  would  seem  to  be  reasonable  to 
assume  that  a  person  authorized  to 
sell  liquors  to  the  public  frequenting 
the  place  should  have  the  right  to 
reach  the  public  from  his  bar  on  the 


SS    294  295]  RIGHTS    UNDER    LICENSE.  349 

licensed  retailer  to  another  county  neither  abrogate*  his  lie 

nor  renders  his  clerk-  or  agenl  who  continues  to  carry  on  the 
business  at  the  same  place  subject  to  an  indictment  under  the 
statute.88 

§  294.  Where  license  board  prescribes  unauthorized  hours. 

Where  there  is  no  authority  in  a  licensing  board  or  official  to 
prescribe  the  hours  within  which  liquors  may  be  sold  by  a 
licensee,  the  fact  that  certain  hours  are  prescribed  by  such  official 
in  "ranting  the  license  does  not  interfere  with  the  right  of  the 
licensee  to  sell  at  such  hours  as  the  general  law  permits.34 

§  295.  License  to  firm — to  member  of. 

A  license  to  one  partner  individually  confers  no  authority 
upon  his  co-partners  or  the  firm  to  engage  in  the  liquor  traffic.35 
And  a  license  to  sell  vinous  or  spirituous  liquors  issued  to  a  firm 


grounds  through  waiters  employed  to 
distribute  to  the  patrons  of  the  place 
what  he  was  authorized  to  sell  and 
deliver.  The  license  includes  not 
only  the  right  to  sell  over  a  bar  but 
whatever  is  fairly  included  in  or 
incidental  to  the  business  author- 
ized."    Per  » CBrien,  J. 

88.  Thompson  v.  State,  37  Ala.  151. 

84.  Franklin  County  Liquor  Li- 
censes,  26   Pa.  Co.  Ct.  R.   152. 

85.  Alabama.— Long  v.  State,  27 
Ala.   32. 

Indiana. — Shaw  v.  State,  56  [nd. 
L88. 

Iowa — State  v.  McConnell,  90  Iowa 
197,   .-.7    X.  W.   707. 

Maine.— Webber  v.  William--.  36 
Me.  512. 

Virginia. — Commonwealth  v.  Hall, 
8  Graft.   588. 

"  A  license  to  retail  affords  pro- 
tection only  for  those  acts,  which,  in 
law,  are  merely  the  acts  <>r"  the  per- 
son to  whom  it  is  granted.     If  it  is 


granted  to  an  individual,  it  affords 
protection  only  for  those  acts  which, 
in  law,  are  merely  his  acts  as  an  in- 
dividual. If  it  is  granted  to  a  part- 
nership, it  affords  protection  only  for 
those  acts  which,  in  law,  are  the  acts 
of  the  firm,  a  license  to  an  individual 
cannot  be  a  license  to  a  partnership." 
Long  v.  State.  27  Ala.  32,  36.  Per 
Riee.    J. 

A  sale  by  an  unlicensed  mem- 
ber of  a  firm  dues  not  come  within 
the  rule  authorizing  a  sale  by  an 
agent.  Shaw  v.  State.  56  Ind. 
188. 

Presumption  as  to  sale. — In  a 
suit  under  the  statute  by  a  person  to 
whom  the  purchaser  of  liquor  was  in- 
debted to  recover  the  amount  paid 
for  liquor  to  a  firm  the  presumption 
i-.  it  appearing  that  one  of  the  mem- 
bers of  the  firm  had  a  license  to  sell, 
that  the  sale  was  made  by  such  mem- 
ber. Webber  v.  Williams.  36  Me. 
512. 


35<t 


RIGHTS    UNDER    LICENSE. 


[§   296 


confers  no  authority  to  sell  such  liquors  on  another  firm,  a  member 
of  which  is  also  a  member  of  the  firm  to  whom  the  license  was 
issued.36  But  it  has  been  decided  that  one  who  has  purchased 
his  partner's  interest  in  the  firm  is  authorized  to  carry  on  the 
same  business  under  the  license  granted  to  him  and  his  partner 
to  retail  liquors.37  In  a  case  in  Iowa,  however,  it  is  decided  that 
consent  given  a  firm  to  carry  on  the  liquor  business  and  a  bond 
given  for  the  firm,  and  payment  of  the  tax,  in  accordance  with 
the  mulct  law,  are  no  protection  to  one  of  the  members  carrying 
on  the  business  after  buying  the  interest  of  the  other.38 

§  296.  License  to  office  of  corporation. 

A  license  issued  to  an  officer  or  member  of  a  corporation  in 


36.  Lynch  v.  State,  147  Ala.  143, 
39  So.  912;  Wharton  v.  King,  69 
Ala.  365. 

37.  Lynch  v.  State,  147  Ala.  143, 
39  So.  912 ;  Commonwealth  v.  James, 
98  Ky.  30,  32  S.  W.  219,  wherein  the 
court  said :  "  Upon  just  what  ground 
the  retirement  of  one  member  of  the 
firm  should  work  a  forfeiture  of  the 
license  we  are  not  able  to  perceive. 
The  removing  partner  has  parted  with 
no  rights,  and  given  up  no  privileges 
secured  to  him  by  name  in  the  license 
to  the  firm.  It  is  true  a  license  is 
said  to  be  a  personal  privilege,  de- 
pending on  the  fitness  of  the  license 
to  properly  exercise  the  grant.  But 
it  can  hardly  be  supposed  that  the 
issual  of  a  license  to  a  firm  or  part- 
nership is  made  to  depend  on  the 
personal  fitness  of  any  particular 
member  of  the  firm  over  that  of  any 
other  member.  Rather  should  we  say 
that  the  law  requires  each  member 
to  be  personally  fit  before  the  license 
should  be  granted.  And  the  remain- 
ing member  is  certainly  not  rendered 
less  fit  personally  to  exercise  the  priv- 
ileges of  the  license  because  his  part- 
ner has  retired.     Such  has  been  the 


conclusion  of  this  and  the  Superior 
Court  with  reference  to  peddlers'  li- 
cense (Hill  v.  Thixton,  94  Ky.  96,  23 
S.  W.  947)  and  such  was  the  con- 
clusion of  the  Superior  Court  in  this 
case  on  a  former  appeal  by  the  pres* 
ent  appellee.  16  Ky.  Law  Rep.  445." 
Per  Hazelrigg,  J.  See  also  United 
States  v.  Davis,  37  Fed.  468;  State 
v.  Gerhardt,  48  N.  C.   178. 

Note  given  for  partner's  inter- 
est.— Where  men  are  interested  in  a 
stock  of  liquors  as  partners  a  sale  by 
one  to  the  other  is  no  violation  of  the 
laws  as  to  sales  without  a  license 
and  therefore  no  defense  to  an  action 
on  a  note  given  for  liquors  so  sold. 
Hagerty  v.  Tuxbury,  181  Mass.  126, 
63  N.   E.   333. 

38.  State  v.  Zermuehlen,  110  Iowa 
1,  81  N.  W.  154,  wherein  it  was  said: 
"If  it  may  be  conceded  that,  being  a 
member  of  the  firm,  he  was  included 
in  the  consent,  yet,  it  may  not  have 
been  given  because  of  him,  but  be- 
cause of  the  confidence  in  the  other 
member  or  in  the  two  acting  together, 
that  the  business  would  be  legally 
conducted.  In  contemplation  of  law, 
at  least  so  far  as  this  question  is  con- 


§   297]  RIGHTS    UNDER    LICENSE.  35] 

his  own  individual  name  cannol  operate  ae  a  license  to  the  cor- 
poration, nor  justify  sales  of  liquor  made  by  the  latter  on  its  own 
account,  notwithstanding  the  county  commissioners  and  the 
licensee  believed  that  it  would,  and  intended  that  it  should  have 
that  effect.39 

§  297.  Duration  of  license. 

The  period  during  which  a  license  is  to  run  depends  upon  the 
provisions  of  the  law  which  provide  for  its  issuance.  Thus  it 
may  not  extend  beyond  the  municipal  year  where  the  statute  so 
provides,40  or  it  may  terminate  at  the  end  of  the  excise  year,41 
or  it  may  be  granted  for  one  year,  its  termination  not  being 
dependent  on  the  expiration  of  the  terms  of  office  of  the  officials 
who  granted  it.42  Where  a  statute  requires  the  payment  of  a 
license  "  for  each  calendar  year  or  part  thereof  "  it  is  decided  in  a 
recent  case  that  the  expression  "  calendar  year  "  means  a  period 
of  twelve  months,  commencing  January  first  and  ending  Decem- 
ber thirty-first,  and  not  a  period  of  twelve  months  commencing 
at  any  fixed  or  designated  month  and  not  terminating  until  the  day 
of  the  corresponding  month  in  the  next  succeeding  year.43  In 
New  York  under  the  laws  of  1008,  changing  the  expiration  of 
the  excise  year  from  April  thirtieth  to  September  thirtieth,  and 


cernetl,  the  persons  composing  a  firm  charter  of  the  city  of  Redwood   Falls 

are  as  separate  and  distinct  from  that  thai    all    liquor    licenses    shall    com- 

firm    as    any    other    persons."      Per  mence  and  terminate  on  the  twentieth 

Given,  J.  of  January   of   each   year   was   not    re- 

:«>•  Connecticut     Breweries    Co.    v.  pealed  by  Chapter  90,  Laws   1895,  or 

Murphy,  si    Conn.   1  !:>.   7"   Atl.  450,  by  section   1522,   R.   T..   1905.     Evans 

holding  thai    such   sales  being  unau-  v.  City  of  Redwood   Falls.  103  Minn. 

thorized  and   illegal   a   note  given  to  314.  115  X.  \Y-  200. 
the  corporation  in  consideration  there-  ■'-•  Hendersonville  v.  Price.  96  X. 

for   is   void.  C.  423,  2  S.  E.  155. 

•»<>.  Brown  v.  Lutz,  36  Neb.  527,  54  *'•■  Carroll  v.  Wright,  131  Ga.  728, 

X.  W.  860.  63  S.  E.  2c.1t. 

41.  Disbrow    v.    Saunders,    1     Tien.  Year  refers  to  calendar  year.— 

(X.  V. )    149.     In  Minnesota  it   is  de-  Engelthaler     v.     Linn     County,     104 

cided    that    the    requirement    of    the  Iowa  293,  73  X.  W.  578. 


352 


EIGHTS    UNDER    LICENSE. 


[§  298 


which  provided  that  the  status  existing  at  the  time  a  vote  is  taken 
on  local  option  shall  not  be  changed  until  the  first  of  October 
following  next  thereafter,  it  was  decided  that  one  making  due 
application  for  a  liquor  tax  certificate  on  May  first,  1908,  in  a 
town  which  formerly  allowed  the  issuance  of  licenses  was  en- 
titled to  such  license  until  October  first  following,  although  the 
town  voted  against  licenses  at  a  meeting  held  in  November, 
1907.44 

§  298.  License  not  assignable. 

A  license  to  sell  intoxicating  liquors  is  a  personal  permit 
merely,  which  is  not  assignable  in  the  absence  of  statutory  au- 
thority and  is  not  an  asset  subject  to  the  demands  of  creditors 
and  affords  no  protection  to  another  than  the  licensee  or  his 
representative  in  the  conduct  of  a  retailing  business.45     So  where 


44.  People  ex  rel.  McEachron  v. 
Bashford,  128  App.  Div.  (N.  Y.)  351, 
112  N.  Y.  Supp.  502. 

45.  Alabama. — Barnard  v.  State 
(Ala.    1909),   48   So.   483. 

Florida. — State  v  County  Commis- 
sioners, 22  Fla.  1. 

Indiana. — Strahn  v.  Hamilton,  38 
Ind.  57. 

Ken  tuclcy. — Commonwealth  v. 

Bryan,    9    Dana    310. 

Massachusetts. — Tracy  v.  Ginzberg, 
189    Mass.   2G0,   75  N.   E.   037. 

Missouri. — Mitchell  v.  Branham, 
104  Mo.  App.  480,  79  S.  W.  739, 
under  R.   S.    1899,   §   2992. 

Nebraska. — State  v.  Lydiek,  11 
Neb.  366,  9  N.  W.  500. 

York. — Alger    v.    Weston,    14 
Johns.  231. 

North  Carolina. — State  v.  Mc- 
Neely,  60  N.  C.  232. 

Pennsylvania. — Grimm's  Estate, 
181  Pa.  St.  233.  37  Atl.  403. 

. — State    v.     Bayne,     100 
Wis.   35,  75  N.  W.  403. 


Compare  In  re  May  5,  Am.  Bank 
R.  I. 

A  license  to  manufacture  and 
sell  intoxicating  liquors  only  author- 
izes the  sale  by  the  party  or  parties 
named  therein.  State  v.  McNett,  5 
Penn.    (Del.)    334,  61  Atl.  869. 

A  bankrupt  may  be  compelled 
to  join  with  a  receiver  in  a  petition 
for  the  transfer  of  a  license  where 
the  statute  permits  a  transfer.  In  re 
Wiesel,  173  Fed.  718. 

License  for  tavern. — In  an  early 
cause  in  Kentucky  it  was  declared 
that  the  right  to  keep  a  tavern  was 
a  personal  privilege  and  not  transfera- 
ble. Commonwealth  v.  Branmon,  8  B. 
Mon.    (Ky.)    374. 

Not  subject  of  chattel  mort- 
gage.— A  liquor  license  being  a  mere 
privilege  and  not  a  property  right 
is  held  in  New  Jersey  1"  be  incapable 
of  being  the  subject  of  a  chattel  mort- 
gage. Feigenspan  v.  Mulligan.  03 
N.  J.  Eq.  179.  51  Atl.  191.  But  in 
Texas    it    is    decided   that   under    the 


§  299] 


RIGHTS    UNDER    LICENSE. 


353 


a  sale  and  transfer  of  a  license  is  prohibited  by  law  and  such  a 
sale  forms  a  part  of  the  consideration  for  a  promissory  note,  such 
note  is  wholly  void.40  In  some  states  a  transfer  of  a  license  is 
authorized  by  statute,  and  where  this  is  the  case  a  license  can 
only  be  transferred  in  the  manner  authorized.17 

§  299.  Liquor  tax  certificate  assignable  in  New  York. 

Under  the  !Xe\v  York  statute  a  liquor  tax  certificate  is  in  the 
nature  of  personal  property,48  and  it  ami  the  rights  thereunder 
are  subject  to  transfer  and  assignment.49  And  it  may  be  assigned 
without  delivery  to  one  who  has  advanced  money  to  enable  the 
licensee  to  procure  it.50  And  the  statutes  allowing  a  transfer  of 
the  liquor  tax  certificate,  if  a  party  in  consideration  of  an  agree- 


laws  of  that  state  a  license  may  be 
mortgaged.  Nieolini  v.  Langeruvan 
(Tev.  Civ.   1907),   104  S.  W.  501. 

The  purchaser  of  a  saloon  from 
one  who  has  been  licensed  to  sell  in- 
toxicating liquors  is  not  protected  in 
conducting  such  business,  by  the  li- 
cense of  his  vendor.  Heath  v.  State, 
105  Ind.  342,  4  N.  E.  901. 

46.  Arnett  v.  Wright,  18  Okla.  337, 
89  Pac.  1110. 

A  promissory  note  a  part  con- 
sideration for  which  is  the  transfer 
of  a  license,  which  transfer  is  not 
authorized  by  statute  is  to  that  ex- 
lent  without  consideration.  Strabn 
v.  Hamilton,  38  Ind.  57.  See  also 
Sanderson  v.  Coodrieh,  46  Barb. 
(N.  V.)    CIO. 

47.  Hill  v.  Sheridan,  128  .Mo.  App. 
415,  107  s.  W.  lit',;  Keiper's  License, 
21  Pa.  Super,  ft.  .".12.  citing  Blumen- 
thal's  Tet  it  ion,  125  Pa.  St.  412,  18 
Atl.   395. 

In  Pennsylvania,  under  the  rtat- 
ute  of  1858  which  provided  tor  trans- 
fers and  which  was  not  repealed  by 
the  act  of  1SS7.  where  a  person  to 
whom  a  liquor  license  had  been 
granted   died   or   removed    in    the    in- 


terval between  the  granting  or  award- 
ing of  the  license  by  the  court  and 
the  payment  of  the  licensee  fee,  the 
license  could  be  transferred  by  the 
court  to  another  person.  Umholtz's 
License,   191  Pa.  St.  177,  43  Atl.  75. 

48.  Niles  v.  Mathusa,  162  N.  Y. 
540,  57  N.  E.  184,  aff'g  20  App.  Div. 
483,  47  N.  Y.  Supp.  38. 

49.  Matter  of  Jenney,  19  Misc.  R. 
(N.  Y.)  244,  44  N.  Y.  Supp.  84;  Niles 
v  Mathusa,  19  Misc.  R.  (N.  Y.)  96, 
44  X.  Y.  Supp.  88. 

Right  of  commissioners  to  re- 
voke transfer. — Where  the  commis- 
sioners of  excise  have  recorded  a 
resoluion  to  grant  a  transfer  of  a 
license  they  cannot  reconsider  or  re- 
voke their  decision  on  the  ground  of 
their  mistake  and  having  recorded 
the  resolution  though  under  such  cir- 
cumstances, mandamus  will  lie  to 
compel  them  to  complete  the  trans- 
fer ami  deliver  the  written  permit. 
People  ex  rel.  Cochrane  v.  Wells,  n 
}!isr.  R.  (N.  V.i  239,  32  X.  Y.  Supp. 
973. 

BO.  Niles  v.  Mathusa,  20  App.  Div. 
(X.  V.)  4s:;.  47  X.  V.  Supp.  38,  o/fd 
L62    X.    V.    546,    57    X.    K.    184.    and 


354 


RIGHTS    UNDER    LICENSE. 


[§   299 


nient  to  pay  a  certain  amount  makes  an  effective  transfer  thereof 
to  the  one  making  such  promise,  the  one  transferring  the  license 
is  entitled  to  recover  the  sum  agreed  to  be  paid.51  And  a  county 
treasurer  is  not  justified  in  refusing  to  consent  to  the  transfer  of 
a  liquor  tax  certificate  upon  the  ground  that  a  verbal  complaint 
has  been  made  against  the  holder  of  the  certificate  that  he  was 
carrying  on  his  liquor  business  in  a  room  connected  with  his 
grocery.52  The  certificate  is  not,  however,  a  chattel  within  the 
purview  of  the  chattel  mortgage  act,53  and  is  not  subject  to  levy 
and  sale.54 


holding  that  where  one  has  advanced 
money  to  enable  a  person  to  procure 
a  liquor  tax  certificate  and  the  one 
to  whom  it  is  issued  makes  an  agree- 
ment to  assign  the  same  to  the  one 
advancing  the  money  upon  demand,  it 
is  sufficient  if  a  demand  is  made  at 
the  time  that  a  judgment  creditor  ap- 
plies for  a  receiver  of  the  licensee's 
property  in  supplementary  proceed- 
ings and  laches  is  not  established  by 
the  fact  that  there  was  a  delay  of 
seven  months  in  making  such  de- 
mand. 

The  tax  certificate  is  personal 
property  within  the  meaning  of  the 
statute  ( Statutory  Const.  Act.  Laws 
1892,  ch.  677,  §  4)  that  "everything 
except  real  property  which  may  be 
the  subject  of  ownership  "  is  personal 
property.  People  v.  Durante,  19  App. 
Div.  292,  45  N.  Y.  Supp.  107.3.  The 
tax  certificate  is  not  a  chattel  within 
the  purview  of  the  Chattel  Mortgage 
Act  (1  R.  S.,  9th  Ed.,  2013)  and 
a  transfer  thereof  as  security  for  a 
loan  is  valid  as  against  a  subsequent 
judgment  creditor  of  the  assignor,  al- 
though  not  filed  as  a  chattel  mort- 
gage. Niles  v.  Mathusa,  162  N.  Y. 
546,  57  N.  E.  184,  aff'g  20  App.  Div. 
483,  47  N.  Y.  Supp.  38. 

51.  Rubenstein  v.  Kahn,  5  Misc.  R. 
(N.  Y.)    408,  25  N.  Y.   Supp.   7 (in. 

52.  People  ex  rel.  Ryan  v.  Manzer, 


18   Misc.   R.    (N.   Y.)    292,   41   N.   Y. 
Supp.   1075. 

53.  Niles  v.  Mathusa,  162  N.  Y. 
546,  57  N.  E.  184,  aff'g  20  App.  Div. 
483,  47  N.  Y.  Supp.  38. 

The  statutory  provision  in  re- 
lation to  filing  chattel  mortgages 
does  not  apply  to  the  assignment  of 
a  liquor  tax  certificate,  made  to  secure 
repayment  of  money  advanced  to  pay 
therefor  and  for  goods  purchased, 
especially  as  against  a  receiver  of  the 
licenses  appointed  in  supplementary 
proceedings.  Matter  of  Jenny,  19 
Misc.  (N.  Y.)  244,  44  N.  Y.  Supp. 
84. 

Where  one  had  executed  a  chattel 
mortgage  upon  his  "  right,  title  and 
interest  to  a  license  to  sell  beer  or  to 
a  renewal  thereof  "  which  license  was 
issued  under  the  old  law  the  mort- 
gagee was  held  to  have  no  right  to 
the  tax  certificate  issued  under  the 
new  law  as  the  certificate  was  not  in 
existence  when  the  mortgage  was 
given,  is  not  a  chattel  and  cannot  be 
mortgaged.  The  court  however  de- 
termined that  the  mortgage  would  be 
good  in  equity  as  a  contract  to  assign 
the  new  certificate  when  acquired. 
McNeeley  v.  Welz,  166  N.  Y.  124,  59 
N.  E.  697,  aff'g  20  App.  Div.  567,  47 
N.  Y.  Supp.   310. 

54.  The  tax  certificate  is  not  sub- 
i  d   to  levy  and  sale  as  it  is  a  mere 


§   300J  RIGHTS    UNDER    I.  <  ENSE.  355 

§  300.  Transfer  of  license  in  Pennsylvania. 

The  act  of  April  20,  L858,  as  to  transfer  of  Licenses  wai  qoI 
repealed  by  act  of  May  13,  18S7.55  Under  the  ad  of  L858,  in 
Pennsylvania,  the  uniform  practice  of  the  court  has  been  to 
order  a  transfer  upon  a  proper  case  shown  to  the  court.58  By  ad 
of  July  15,  1897,  P.  L.  297,  a  transfer  of  a  license  from  place 
to  place,  was  authorized  for  "partial  or  complete  destruction" 


chose  in  action  incapable  of  seizure 
or  delivery  by  the  sheriff  and  is  not 
within  the  description  of  personal 
property  bound  by  execution  as  laid 
down  in  the  Code  of  Civil  Procedure 
(§§  1405,  1410,  1411)  and  is  not  sub- 
ject to  levy  and  sale  thereunder  at 
least  unless  a  warrant  of  attachment 
has  been  issued  and  a  levy  made  by 
virtue  thereof.  McNeeley  v.  Welz, 
106  N.  Y.  124,  59  N.  E.  697,  aff'g  20 
App.  Div.  567,  47  N.  Y.  Supp.  310. 

55.  Blumenthal's  Petition,  125  Pa. 
St.  412,  18  Atl.  395;  Rohm's  License, 
14  Pa.  Co.  Ct.  202. 

56.  Leibeknecht's  License,  14  Pa. 
Co.  Ct.  R.  571,  citing  Summa's  Li- 
cense, 12  Pa.  Co.  Ct.  R.  667  ;  Heilig's 
License,  12  Pa.  Co.  Ct.  R.  538; 
Breen's  License,  2  Pa.  Dist.  R.  652; 
Doyle's  License,  6  Kulp.  356 ;  Hav- 
len's  License,  3  Pa.  Co.  Ct.  R.  474; 
Leahey's  License,  13  Pa.  Co.  Ct.  R. 
430. 

Transfer  to  executor. — See 
Theis's    Ca-e.    f,    I 'a.    ('<..    Ct.    R.    396. 

What  petition  for  transfer  of 
license  should  contain. — See  Mc- 
Kibbiifs  License,  11  Pa.  Super.  Ct. 
421. 

Appeal  from  order  for  trans- 
fer.— An  owner  of  premises  occupied 
by  one  in  enjoyment  of  a  retail  liq- 
uor license  and  who  appeared  as  a 
remonstrant  against  the  transfer  of 
the  license  lias  sufficient  interest  in 
the  proceeding  to  appeal  from  an 
order  directing  a  transfer.     McCabe's 


License,  11   Pa.  Supp.  Ct.  560. 

Refusal  of  consent  by  insol- 
vent to  transfer. — Where  the  holder 

of  a  license,  who  has  become  in- 
solvent, removes  from  the  premises, 
the  court  will  order  a  transfer  of 
the  license,  where  he  refuses  his  con- 
sent thereto,  upon  the  payment  to 
him  of  such  sum  of  money  as  may  be 
due  him  for  the  cost  and  expenses  of 
said  license  for  the  time  it  was  not 
used  by  him.  Leibeknecht's  License, 
14  Pa.  Co.  Ct.  R.  571;  See  Summa's 
License,  12  Pa.  Co  Ct.  R.  667. 

Where  the  right  under  a  li- 
cense has  been  forfeited  by  the 
holder  a  transfer  of  the  same  may  be 
made  at  the  instance  of  the  party 
owning  the  premises  where  the  right 
under  the  license  was  exercised,  it  ap- 
pearing that  such  owner  had  no 
knowledge  of  the  violations  for  which 
such  right  under  flic  license  was  for- 
feited. Besse's  License,  28  Pa.  Co. 
Ct.  P.  353:  Quirk.  Kelly.  Burchill, 
Kearney,  <  .'ea  rhart  and  Boylon  Li- 
censes,  17    Pa.   Co.  Ct.   327. 

The  court  of  quarter  sessions 
in  Pennsylvania  has  no  jurisdiction 
to  authorize  the  transfer  of  a  whole- 
sale liquor  license  from  <>ne  place  to 
another.  Laib  &  Co.  \.  Hare.  163  Pa. 
St.    is  1.  :;o  Atl.   163. 

Can  only  transfer  license  in 
accordance  with  statute. — Kel- 
lar's  Petition,  '.»  Pa.  Dist.  R.  340; 
Hotel  Cambridge  License,  20  Pa.  Co. 
(t.   229. 


350  RIGHTS    UNDER    LICENSE.  [§   301 

of  the  premises.  In  construing  this  act  it  was  declared  that  it 
should  have  a  reasonable  construction  having  regard  for  the 
purpose  for  which  passed  and  should  neither  be  construed  too 
liberally  so  as  to  permit  a  transfer  upon  every  trivial  pretext, 
nor  too  strictly  so  as  to  prevent  the  transfer  in  cases  plainly 
within  the  mischief  existing  under  the  old  law.07  In  this  state 
it  has  been  decided  that  an  agreement  to  repay  in  installments 
a  loan  made  to  carry  on  the  liquor  business  and  to  transfer  and 
assign  the  license  and  stock  and  fixtures  to  such  persons  as  the 
creditor  may  designate,  is  not  against  public  policy.58 

§  301.  License  as  subject  of  levy  and  sale. 

A  license  being  not  property  but  a  mere  personal  privilege  is 
not  regarded  as  the  subject  of  a  levy  and  sale.59  So,  in  Penn- 
sylvania, it  is  decided  that  the  sheriff  cannot  levy  upon  a  license 
and  sell  it  in  the  ordinary  way  as  he  cannot  make  title  to  a  pur- 
chaser.60 And  this  is  the  rule  in  New  York,  where  a  liquor  tax 
certificate  has  been  given  by  statute  more  of  the  characteristic 
of  property  probably  than  in  any  other  state.61  But,  in  Con- 
necticut, a  statute  has  created  the  right  to  attach  liquor  licenses, 
the  certificate  being,  under  such  statute,  treated  as  representing 
the  privilege  conferred,  and  the  custody  of  the  certificate  by  the 
attaching  or  levying  officer  stands  for  the  custody  of  the  law, 
through  and  by  him,  of  the  intangible  franchise  which  is  the 
only  thing  of  value.62  And  in  this  state  until  consent  to  a  trans- 
fer of  a  liquor  license  has  been  given  by  the  county  commissioners 
and  the  transferee  has  complied  with  the  other  requirements  of 


57.  McCabe's  License,  11  Pa.  Super.  subsequent    to    the    adjudication     of 

Ct.    560.  his    bankruptcy.      Barnard    v.    State 

-   58.  Germantown    Brewing    Co.     v.  (Ala.    1909),  48   So.  483. 

Booth,  ]<r2.  Pa.  St.  100,  29  Atl.  .380.  60.  Ulrich's  License,  G  Pa.  Dist.  R. 

•"»?>.   Bankruptcy    has    no    effect    to  408. 

cancel  the  privilege  or  permit  held  by  01.  See  §  ante  herein 

the  licensee  to  carry  on   liis  business  *>2-  Quinnipiac  Brew.  Co.  v.  Hack- 

of    selling    liquors    under    his    license  barth,  74  Conn.  392,  50  Atl.   1023. 


8   302]  RIGHTS    I  NDEB    LI<  ENSB.  357 

the  law,  the  license  remains  the  property  of  the  original  licensee 
and  is  subject  to  attachment  by  his  creditors.63  In  an  early 
case,  in  New  Hampshire,  it  is  decided  that,  spirituous  liquors  may 
be  taken  on  mesne  process  or  execution  and  sold  on  execution 
for  the  debt  of  the  owner;  they  not  being  exempl  by  implication 
from  such  process  by  law  as  to  regulating  and  licensing  their  sale, 
for  a  particular  purpose  only  and  prohibiting  their  sale  for  any 
other  use  or  purpose.04 

§  302.  Rights  of  licensee  as  to  stock  and  fixtures. 

The  rights  conferred  by  a  license  expire  with  the  expiration  of 
the  term  mentioned  therein.65  And  it  is  said  that  "  If  retailers 
of  spirituous  liquors  desire  to  be  protected  they  had  better  procure 
their  licenses  before  they  commence  retailing;  or,  if  their  licenses 
expire,  then  stop  retailing  until  they  are  renewed  *  *  *  other- 
wise they  take  the  risk."  °°  So  it  has  been  decided  that  a  license 
expires  at  the  end  of  the  period  for  which  it  was  granted  without 
regard  to  the  amount  of  stock  the  licensee  may  have  on  hand.  If 
it  were  otherwise  the  licensee  might  purchase  a  large  stock  just- 
before  the  expiration  of  the  license  to  last  him  for  a  long  period 
and  thus  evade  the  law.07  But  in  Maryland,  though  the  license  of 
one  authorized  to  sell  at  retail  has  terminated,  it  is  decided  that 
he  is  not  thereby  precluded  from  disposing  of  his  fixtures  and 
stock  in  trade,  but  that  he  may  lawfully  sell  and  dispose  of  the 
same  though  not  at  retail.  A  sale  of  them  at  auction  or  by  private 
sale  by  wholesale  at  one  time,  in  good  faith,  for  the  purpose  of 
closing  his  business  and  not  in  the  prosecution  of  the  regular 
trade,  is  held  not  to  be  an  infraction  of  the  license  laws.68 

<;:?.  Gilday    v.    Warren,    69    Conn.  66.  Reese    v.    City   of    Atlanta,    63 

237.    37    Ati.    494.  Ga.    344.      Per   Warner,   C.   J. 

G4.  state    v.    Johnson,    33    X.    H.  67.  United     States    v.    Angell,     11 

441.  Fed.  34. 

<:•"•  State  v.  McNett,  5  Penn.  (Del.)  68.  Forwood  v.  State.  40  Md.  531. 
334. 


358  HE  VOCATION,    SURRENDER    AND    REBATE. 


CHAPTER  XIV. 

REVOCATION,  SURRENDER  AND  REBATE. 

Section  303.  Right  to  revoke  generally. 

304.  Power  of  municipality  to  revoke — as  to  rebate. 

305.  Where  statute  specifies  causes. 

306.  Effect  of  expiration  of  license. 

307.  Revocation  by  repeal  of  license  law. 

308.  Where  license  contains  provisions  as  to  forfeiture. 

309.  Grounds  of  revocation  generally. 

310.  Unlawful  sales. 

311.  False  statements  in  application. 

312.  Statement  as  to  continuous  occupation — suspension  by  fire  or 

accident. 

313.  Violation  of  law — conviction  for. 

314.  License  to  partners. 

315.  License  to  club  organized  to  evade  law. 

316.  License  to  hotels. 

317.  Petition  for  revocation. 

318.  Answer. 

319.  Parties. 

320.  Who  may  intervene. 

321.  Procedure   to   revoke. 

322.  Necessity  of  notice  of  proceeding. 

323.  Proceedings — appointment  of  referee. 

324.  Exercising  power  to  revoke — mandamus. 

325.  Evidence. 

320.  Staying  proceedings. 

327.  Not  entitled  to  trial  by  jury. 

328.  Costa  of  proceedings. 

329.  Reviewing  action — certiorari. 

330.  Right  to  rebate — no  statute. 

331.  "        "        "     — where  statute. 

332.  Surrender — right  to  rebate — New  York. 

333.  Surrendi  r — ri^l  ♦  to  rebate — New  York. 


§  303] 


REVOCATION,    SURRENDER    AND    REBATE. 


359 


SECTION  334.  Procedure  to  obtain  rebate — New  York. 
335.  Right  to  rebate — mandamus — Now  York. 
:!.'{(;.   Right  of  assignee  to  rebate — receiver. 

337.  Right  of  licensee  as  affected  by  ads  of  employee — revocation — 

rebate. 

338.  Effect  of  surrender  before  violation. 

§  303.  Right  to  revoke  generally. 

Inasmuch  as  a  license  is  in  the  nature  of  a  mere  permit,  creates 
no  vested  or  property  rights,  and  the  traffic  is  at  all  times  subjeel 
to  the  control  of  the  state  in  the  exercise  of  the  police  power,  it 
follows  that  the  state  may  at  any  time  revoke  licenses  whenever 
it  deems  it  advisable  for  the  public  welfare.1     "  So  long  as  the 


!•  United  States. — Cook  Brewing 
Co.   v.   Garber,    168    Fed.   942   948. 

Connecticut. — La  Croix  v.  County 
Commisioners,  49  Conn.  591. 

Indiana. — State  v.  Williams  (Ind. 
S.  C.  1910),  90  N.  E.  754. 

Iowa. — McConkie  v.  Remley,  119 
Iowa  512,  93  N.  W.  505. 

Kansas. — Newman  v.  Lake,  70 
Kans.  848,  79  Pac.  G75,  following 
State  v.  Durein,  70  Kans.  1,  78  Pac. 
152. 

Maryland.— Fell  v.  State,  42  Md. 
71,  20  Am.  Rep.  83. 

Massachusetts. — Young  v.  Blais- 
dell,  138  Mass.  34  I. 

Minnesota. — Claussen  v.  City  of 
Luverne,  103  Minn.  491,  115  N.  W. 
643. 

Nebraska.— Martin  v.  State,  23 
Neb.  371,  36  X.  \V.  554. 

New  Hampshire. — State  v.  Holmes, 
38  N.  H.  225. 

Oregon. — State  v.  Horton,  21  Oreg. 
83,  27   Pac.  165. 

Virginia. — Davis  v.  Commonwealth, 
75  Va.  944. 

In  this  connection  it  is  said  in  a 
case  in  Illinois:  "If  by  authorizing 
a   license  or  permit  for  one  year,  the 


state  could  deprive  itself  of  the  right 
to  impose  new  restrictions  upon  the 
licensee  during  that  period,  a  law  au- 
thorizing licenses  might  bind  succes- 
sive legislatures  for  three,  five,  or 
even  ten  years.  If  the  legislative  dis- 
cretion could  be  fettered  or  bargained 
away  for  one  year,  it  could  upon  the 
same  principle  be  bargained  away  for 
an  indefinite  period."  Moore  v.  City 
of  Indianapolis,  120  Ind.  4S3,  491,  22 
X.   E.    124.      Per  .Mitchell,  J. 

Does  not  impair  obligation  of 
contracts.— An  act  which  authorizes 
county  commissioners  t"  revoke  li- 
censes and  gives  them  sole  and  final 
jurisdiction  in  the  matter  is  not  sub- 
ject to  the  objection  that  it  impairs 
the  obligation  of  contracts.  La  ("mix 
v.  County  Commissioners,  50  Conn. 
321,  47  Am.  lie;..  648. 

Revocation  of  license  not  a 
tailing  without  due  process  of 
law.— Cassi.ly  v.  Mayor  of  City  of 
Macon  (Ga.  S.  C.  1909),  GO  S.  E. 
'.Ml. 

Statute     conferring    power    to 
revoke    construed. — Where    a 
ute   provides   that    a    license   may   be 
revoked  by  a  certain  body  whenever 


300        REVOCATION,  SURRENDER  AND  REBATE.     [§  303 

state  law  recognizes  the  right  to  make  and  vend  intoxicating  liq- 
ors,  that  occupation  is  under  the  protection  of  the  law,  but  then  it 
is  at  most  mere  license  to  carry  on  an  occupation,  which  may  be 
revoked  at  the  arbitrary  will  of  the  legislature  at  any  time.  If 
the  legislature  chooses  to  outlaw  the  occupation,  there  is  no  right 
of  property  in  the  business  in  which  the  owner  is  protected  by 
the  Constitution  and  laws  either  of  the  state  or  of  the  United 
States." 2  The  revocation  of  a  license  is  not  for  punishment 
within  the  meaning  of  the  constitution,  but  because  by  violations 
of  the  law  the  licensee  has  shown  that  he  is  not  a  proper  person 
to  hold  it,  and  therefore  such  a  revocation  does  not  oust  justices 
of  the  peace  of  their  jurisdiction  to  try  complaints  for  violating 
the  law.3  And  the  fact  that  holders  of  revoked  licenses  may  have 
invested  money  in  liquors  or  in  fixtures  needed  in  the  business  is 
held  not  to  vary  the  application  of  the  rule.4  But  under  the 
statute  in  New  York  the  relation  which  exists  between  the  holder 
of  a  liquor  tax  certificate  and  the  state  is  contractual  and  is 
subject,  in  disposition  of  rights  thereunder  to  the  establishment 
of  a  right  to  recover  the  rebate  pursuant  to  the  terms  of  the 
statute.5 


in  its  judgment  such  action  may  be  stitutional    as    excessive    penalty    for 

necessary    to    peace    and    good    order  selling     intoxicating     liquors     to     a 

and  the  preceding  section  of  the  same  minor.     Krueger  v.  CoWille,  49  Wash, 

statute    confers    a    discretion    in    the  295,  95  Pac.  81. 

granting  of  the  license  the  two  sec-  3.  Cook  Brewing  Co.  v.  Garber,  168 

tions  should  be  read  together  and  the  pec]    0,42,   948.     Per  Jones,  O.  J.,  in 

provision   as   to  revocation   construed  construing  a   state   prohibitory  law. 

as  meaning  that  the  judgment  must  3#  gtate  y   O'Connor,  58  Minn.  193, 


4.  Melton  v.  Moultree,  114  Ga.  462, 
40  S.  E.  302. 


be    based    on    the    existence    of    such  gg  N>  w>  gg9 
relevant    facts    as    show    some    cause 
and  necessity  for  such  action.     Pehr- 
son   v.   Ephraim  City,    14   Utah   147, 

46  Pac    Cn  5*  Pe°ple  ex  re^"  A.  Hupfel's  Sons 

Statute    not    providing    exces-  *■    Cullinan,    95    App.    Div.     (N.    Y.) 

sive    penalty.-The    forfeiture   of   a  598,  S8  N.  Y.  Supp.  1022. 

seven  hundred  and  fifty  dollar  liquor  As   to  forfeiture   of  liquor  tax 

license,    in    addition    to    a    fine    and  certificate.— See  note,  32  N.  Y.  Rep. 

liability   upon   a  bond   is   not   uncon-  Ann.  Rev.  Ed.    155. 


§304]  REVOCATION,    SURRENDER    AND    REBATE.  :;i;i 

§  304.  Power  of  municipality  to  revoke — as  to  rebate. 

It  is  within  the  power  of  the  duly  constituted  authorities  of 
a  municipality  having  by  law  the  power  to  granl  licenses  for  the 
retail  traffic  and  to  regulate  and  prohibit  the  traffic  to  revoke  such 
licenses  at  any  time  without  refunding  the  money  paid  therefor 
or  any  part  of  the  same.6     And  in  such  a  case  a  statute  authoriz- 


6.  Melton  v.  Moult  reo,  114  Ga. 
4C2,  40  S.  E.  302;  Ison  v.  Mayor  of 
Griffin,  98  Ga.  023,  25  S.  E.  fill; 
Carbondale  v.  Wade,  106  111.  App. 
C54 ;  See  Hagan  v.  Boonton,  Town  of, 
62  N.  J.  L.  150,  40  Atl.  688,  so  hold- 
ing under  provision  of  the  charter. 

Where  sole  and  exclusive  au- 
thority is  conferred  upon  a  city 
council  to  regulate,  license  and  pro- 
hibit the  sale  of  intoxicating  liquors, 
the  action  of  the  council  in  revoking 
the  license  without  cause  and  refund- 
ing the  unearned  portion  of  the  li- 
cense fee  is  conclusive  and  not  sub- 
ject to  review  by  the  courts.  State 
v.  Superior  Court,  50  Wash.  C50,  97 
Pac.  778. 

Under  power  to  regulate  the 
sale  of  liquor  in  the  city  and 
also  the  general  welfare  clause 
in  the  city  charter  it  is  decided  that 
a  city  may  provide  that  a  conviction 
for  violation  of  a  state  statute  or  of 
a  city  ordinance  shall  work  an  im- 
mediate revocation  of  the  license. 
Sprayberry  v.  City  of  Atlanta,  87  Ga. 
210,  13  S.  E.  197.  See  also  Eoboken 
v.  Goodman,  68  N.  J.  L.  217,  51  Atl. 
1092.  But  see  City  of  Shreveport  v. 
Draiss  &  Co.,  Ill  La.  511,  35  So. 
727. 

■Where  a  town  charter  allows 
the  regulation  and  sale  of  spiritu- 
ous liquors,  an  ordinance  allowing  the 
revocation  of  licenses  upon  the  breach 
of  certain  conditions  regulating  the 
sale,  the  licensee  agreeing  thereto 
upon    receiving   his    license,    is    valid. 


Paul  v.   Washington,   134  N.  C.   303, 
47  S.  E.  793,  65  L.  R.  A.  902. 

Ordinance  revoking  is  consti- 
tutional.— A  municipal  ordinance  re- 
voking a  liquor  license  is  not  uncon- 
stitutional and  void  in  that  it  works 
a  system  of  prohibition  in  the  city 
by  special  enactment  contrary  to  a 
general  law  known  as  a  "  local  option 
law."  McGehee  v.  State,  114  Ga.  833, 
40  S.  E.  1004.  See  Melton  v.  Moul- 
tree,  114  Ga.  4G2,  40  S.  E.  302. 

But  in  Colorado  it  has  been  de- 
cided that  an  ordinance  providing 
that  upon  a  second  conviction  for  a 
violation  thereof  the  license  and  the 
money  paid  therefor  shall  remain  for- 
feited absolutely  though  upon  appeal 
and  trial  de  novo  he  is  subsequently 
acquitted  of  the  offense  has  been  held 
to  be  so  unreasonable  that  it  is  void. 
Mclnerney  v.  Denver,  17  Colo.  302, 
29  Pac.  51G. 

Forfeiture  for  sale  to  minors. 
— Under  a  statute  providing  thai  a 
liquor  license  shall  be  forfeited,  in  ad- 
dition to  other  penalties  provided  for 
by  law,  in  case  the  licensee  sells  liq- 
uors to  ininois.  a  town  council  may, 
where  it  is  given  power  to  license 
and  regulate  the  traffic,  revoke  a  li- 
cense, without  repayment  of  any  por- 
tion of  the  unearned  fee,  upon  con- 
viction of  the  licensee  of  soiling 
liquors  to  minors.  Krueger  v.  Town 
of  Colville,  49  Wash.  295,  95  Pac.  81. 

Rebates  paid  by  city — curative 
act  constitutional. — A  subsequenl 
curative    act    providing   that    "in    all 


3<;2        REVOCATION,  SURRENDER  AND  REBATE.      [§  3()4 

ing  the  forfeiture  and  revocation  of  a  license  for  violation  of  its 
terms  is  not  to  be  construed  as  preventing  the  city  from  so 
revoking  a  license  granted  by  it  as  the  authority  conferred  upon 
the  city  to  license,  regulate  and  prohibit  is  to  be  construed  as 
giving  it  power  over  the  whole  subject.7  And  inasmuch  as  one 
who  accepts  a  license  is  chargeable  with  knowledge  that  it  is 
liable  to  be  revoked,  he  cannot,  as  when  he  has  accepted  one 
from  a  municipality  which  subsequently  revokes  it,  maintain 
an  action  against  the  municipality  for  damages  occasioned  by 
the  revocation.8  Nor  is  a  municipality  liable  in  tort  for  mis- 
taken action  of  the  city  council  in  attempting  to  revoke  a  license 
to  sell  intoxicating  liquors.  The  exemption  of  the  state  or  of 
its  subdivisions  is  based  upon  the  sovereign  character  of  the 
state  and  its  agencies  and  upon  the  absence  of  obligation,  and  not 
on  the  ground  that  no  remedy  has  been  provided.9  Again  where 
a  city  council  has  been  given  jurisdiction  over  proceedings  to 
revoke  liquor  licenses  and  has  not  in  such  a  proceeding  exceeded 
its  jurisdiction,  mandamus  will  not  lie  to  review  its  decision, 
although  the  order  may  be  erroneous.10  But  where  a  common 
council  having  no  power  to  declare  a  license  void  from  its  incep- 
tion, makes  such  a  declaration,  it  will  not  effect  the  validity  of 
the  license  and  will  not  be  regarded  as  an  attempt  to  exercise 
power  conferred  upon  it  to  revoke  a  license  valid  at  its  inception 
but  which  by  subsequent  misconduct  the  council  is  authorized 
to  recall.11 

cases   where  the  officers  of  any  city  Jos.  Schlitz  Brew.  Co.   (Minn.  1909), 

in  this  state  having  a  population  of  121  N.  W.  221. 

over  fifty  thousand  inhabitants  have  7.  State     v.     Superior     Court,     50 

heretofore    in     good     faith    paid    out  Wash.  650,  97  Pac.  778. 

public  moneys  to  any  person  whose  li-  s«  fson  v.  Mayor  of  Griffin,  98  Ga. 

cense  to   soil    intoxicating  liquors   in  623,  25  S.  E.  611. 

such  city  has  been  revoked,  or  to  his  •*•  Claussen    v.    City    of    Luverne, 

assigns,   any   portion  of  the  fee  paid  103  Minn.  491,   115  N.  W.  643. 

for   such    license,    such   payments   are  10.  Mills  v.  State,  53  Neb.  305,  73 

hereby   in   all    respects   validated   and  N.   W.   678. 

legalized"   is  held   not  to  be   invalid  11.  State  v.   Schroff,   123   Wis.   98, 

as  special  legislation.     Calderwood  v.  100  N.  W.   1030. 


§§  305,306,307]  revocation,  surrender  and  REBATE.      363 

§  305.  Where  statute  specifies  causes. 

Where  the  statute  specifies  the  causes  for  which  a  license  may 
be  revoked,  it  can  only  be  revoked  for  the  causes  specified.12 
And  in  such  a  case  a  municipality  has  no  power  to  revoke  it, 
excepl  for  some  one  or  more  of  such  causes.1,1 

§  306.  Effect  of  expiration  of  license. 

Proceedings  to  revoke  a  liquor  tax  certificate  should  not  be 
dismissed  on  account  of  the  fact  that  the  time  for  which  such 
certificate  was  issued  expired  before  the  order  revoking  and 
cancelling  it  was  made.14  But  where  mandamus  is  invoked  to 
enforce  the  revocation  of  a  liquor  license  and  the  license  has 
then  expired  by  limitation  of  time,  compliance  with  the  writ 
would  be  fruitless  and  nugatory,  and  it  is  not  error  to  deny  it.15 

§  307.  Revocation  by  repeal  of  license  law. 

A  license  to  carry  on  the  liquor  traffic  is  revoked  or  annulled  by 
the  repeal  of  the  law  authorizing  the  granting  of  such  license.16 


12.  State  v.  Liehta,  130  Mo.  App. 
284,  109  S.  W.  825 j  Matter  of  Lyman, 
27  Misc.  R.  (N.  Y.)  327,  57  N.  Y. 
Supp.  888. 

13«  Decker  v.  Board  of  Excise,  57 
N.  J.  L.  G03,  31  Atl.  235;  Lautz  v. 
ffightstorm,  46  N.  J.  L.  102. 

i  >•  Matter  of  Lyman,  4S  App.  Div. 
(N.  Y.)  275,  62  X.  Y.  Supp.  846; 
Matter  of  Schuyler,  32  Misc.  R. 
IN".   Y.)    221,   66   X.   Y.   Supp.   251. 

15.  State  v.  Eammel,  134  Wis.  61, 
114  X.  W.  97. 

«<:•  Arie  v.  State  (Okla.  1909),  100 
Pac.  23. 

In  Arkansas. — An  order  of  the 
county  court  prohibiting  the  sale  of 
liquor  within  three  miles  of  a  sehool- 
house  or  church  named  in  the  petition 
has  the  effeel  of  revoking  the  an- 
nual license  of  a  dramshop  keeper 
granted    in    the    same   year    and    thus 


making  the  sale  of  liquor  under  such 
license  a  violation  of  law.  Viefhaus 
v.  State.  71  Ark.  410.  75  S.  W.  585, 
holding  that  an  exception  in  the  stat- 
ute that  it  should  not  "affect  per- 
sons who  may  already  have  obtained 
a  license  to  sell  spirituous  liquors  in 
any  Ideality  wherein  this  aci  shall  be 
put  in  force  until  such  licensi 
expire"  only  protected  those  to  whom 
a  license  had  been  issued  prior  to  the 
passage  of  the  act. 

And  where  an  order  of  the  county 
court  revoking  an  order  prohibiting 
the  Bale  of  Iiqnor  was  reversed  upon 
appeal  to  the  circuit  court,  the  effect 
of  the  reversion  was  to  set  aside  li- 
censes i"  sell  liquor  which  had  in  the 
meantime  been  granted  by  the  county 
Court.  Bordwell  v.  State.  77  Ark. 
161,  91    S.  W.  555. 

Rut    where    power    i-    vested    in    a 


3G4  REVOCATION,    SURRENDER    AND    REBATE.    [§§   308,309 

In  Oklahoma  it  has  been  decided  that  a  liquor  license,  the 
period  for  -which  it  was  issued  not  having  expired  when  the  state 
was  admitted  into  the  Union  was  revoked  and  discontinued  on 
the  admission  of  said  state  by  reason  of  the  prohibition  article  in 
the  Constitution  of  the  state  which  became  then  and  there 
effective.17 

§  308.  Where  license  contains  provisions  as  to  forfeiture. 

Where  a  license  provides  that  the  conviction  of  the  licensee  for 
certain  offenses  will  work  its  immediate  revocation  if  he  pleads 
guilty  to  an  indictment  charging  one  of  such  offense  and  pays  the 
fine  imposed  by  the  court,  his  notice  of  the  revocation  is  held  to 
be  ample,  and  he  cannot  insist  on  a  proceeding  before  a  judicial 
tribunal.18  And  where  a  city  has  granted  a  license  to  sell  liquors 
conditioned  that  in  the  case  of  the  enactment  of  a  law  increasing 
the  amount  of  license  fee,  the  licensee  shall  pay  in  addition  the 
increased  rate  from  the  date  of  increase  to  the  end  of  his  license 
period,  the  city  has  the  power  to  revoke  his  license  for  failure  to 
comply  therewith.19 

§  309.  Grounds  of  revocation  generally. 

As  we  have  stated,  where  the  statute  specifies  the  causes  for 
which  a  license  may  be  revoked  it  can  only  be  revoked  for  one  or 
more  of  such  causes.20  Among  some  of  the  causes  for  revocation 
is  a  failure  to  keep  the  certificate  displayed  in  the  room  or  bar 


county  court  upon  the  petition   of  a  and   render   effective   a   license   after- 

certain    number    of    "  adult   residents  wards   granted   to   sell   liquor   within 

and  voters "   to  put   in    force  an   act  the    prohibited     limits.        Wilson     v. 

prohibiting  the  sale  of  liquors  within  State,   35  Ark.  414. 

.i  certain  distance  of  an  academy,  and  17.  Arie    v.     State     (Okla.     1909), 

no  power  is  delegated  to  such   court  100  Pac.   23. 

to  subsequently  revoke  or  modify  an  is.  Sprayberry  v.  Atlanta,  87  Ga. 

order  so  made,  if  the  court  acts  upon  120,  13  S.  E.  197. 

a  proper  petition  and  issues  such  an  19.  Seattle  v.  Clark,  28  Wash.  717, 

order,   its  power  is  exhausted  and  it  69   Pac.    407. 

cannot  subsequently  revoke  the  order  20«  See  §  305  herein. 


§   309]  REVOCATION,    SURRENDER    AND    REBATE.  ;;,,;, 

where  the  liquor  traffic  ia  carried  on,21  or  a  conviction  for  per- 
mitting gambling  upon  the  premises.22  So  in  New  York, 
gambling  upon  the  premises  has  been  held  a  ground  under  the 
statute  for  revoking  a  certificate  though  the  holder  of  the  cer- 
tificate was  not  present  at  the  time  it  was  done.--  Also  conduct- 
ing the  place  in  a  disorderly  manner  is  a  ground  in  Pennsyl- 
vania,24 as  is  the  permitting  place  to  be  frequented  by  disreputable 
persons,25  and  the  right  to  traffic  is  confined  as  a  general  to  the 
place  specified  in  the  license  or  application.  So  conducting  busi- 
ness of  brewery  at  place  other  than  that  designated  in  a  license  is 
a  ground  for  revocation.20  And  where  five  certificates  were 
issued  to  a  person  to  traffic  in  liquor  in  five  different  places  upon  a 
picnic  ground  and  after  the  surrender  of  four  of  them  he  con- 
tinued to  traffic  in  liquors  in  the  buildings  for  which  the  sur- 
rendered certificates  were  issued,  it  was  held  that  though  the 
law  was  not  violated  at  the  place  for  which  he  retained  the  cer- 
tificate the  cancellation  of  the  entire  five  was  justified.27  But  a 
building  used  by  a  voluntary,  unincorporated  religious  associa- 
tion, which  has  other  regular  headquarters,  and  which  was  erected 
and  used  to  prevent  the  granting  of  the  certificate,  is  not  to  be 
deemed  a  building  used  "  exclusively "  for  religious  purposes, 
in  a  proceeding  to  cancel  it.28 


21.  Matter    of    Mitchell,    41    App.  cation.     State  v.  Apfel,  124  La.  , 

Div.    (N.    Y.)    271,   58    X.   Y.    Supp.  50  So.  613. 

632.  2.-?.  Matter    of    Cullinan,    ss    App. 

2ii.  Ballentine  v.  State,  48  Ark.  45,  Div.   (X.  Y.)   6,  84  X.  V.  Supp.  492. 
2  S.  YV.  340.  24.  Commonwealth  v.  Elliott,  4  Pa. 

Where  the  law  forbids   a   sale  Dist.    R.    89. 
to  minors  it   is  sufficient  in  a  com-  2.1.  Commonwealth   v.    Simmons,   4 

plaint    in  proceedings  to  revoke  a  li-  Ta.   Dist.    R.   35. 
cense  for  such  a  Bale  to  allege  a  sale  2G.  Commonwealth  v.  Kohnle  Brew, 

to  a  minor  without  also  stating  that  Co..  1  Pa.  Super,  (t.  t!27. 
such     sale     was     contrary     to     law.  27.  Mailer  of  Lyman.  59  App.  Div. 

Davis  v.   Repp.    (X.   J.   S.   C.    1010),  (X.  Y.)   217.  69  X.  Y.  Supp.  300. 
75  Atl.   169.  28-  Matter    of    Vail.    38    Misc.    R. 

Permitting  a  minor  to  gamble  (X.  Y.)    302.   77   X.   V.  Supp.  903. 
upon  the  premises  a  ground  for  revo- 


366  REVOCATION,    SURRENDER    AND    REBATE.    [§§   310,311 

§  310.  Unlawful  sales. 

An  ordinary  ground  of  revocation  is  a  sale  which  the  licensee 
is  prohibited  by  law  from  making,29  such  as  a  sale  of  a  quantity 
which  his  license  does  not  authorize  him  to  make,30  or  to  persons  of 
known  intemperate  habits,31  or  to  minors.32  Under  a  statute  pro- 
hibiting a  licensee  to  sell  or  give  away  intoxicating  liquors  to 
minors  without  the  written  authority  of  parent  or  guardian,  and 
providing  that  for  such  violation  the  license  shall  be  subject  to 
revocation  the  licensee's  intent  respecting  alleged  violations  of  the 
statute  is  not  an  essential  factor  in  the  offense.33  It  is  not  a  suffi- 
cient excuse  or  justification  that  the  sale  was  made  to  them  in  good 
faith  after  being  informed  and  under  the  belief  that  they  were  of 
full  age.34 

§  311.  False  statements  in  application. 

Another  ground  for  the  revocation  of  a  license  in  some  states 
is  a  material  false  statement  in  the  application  for  the  license. 
So  in  New  York  in  determining  the  particular  traffic  to  be  carried 
on  the  application  and  liquor  tax  certificate  are  to  be  construed 
together,  and  the  certificate  may  be  revoked  where  there  are 
material  false  statements  in  the  application.35  So  a  certificate 
may  be  revoked  where  there  is  in  the  application  a  false  statement 
that  the  necessary  number  of  consents  have  been  obtained.36     In 


29.  State  v.  Schmidtz,  65  Iowa  556,  Wausau,    137    Wis.    311,    118    N.   W. 

22    N.    W.    673;    Stegmaier    Brewing  810. 

Co.'s   License,    11    Pa.   Dist.    R.    691;  34.  Jn    re    Carlson's    License,    127 

Tierney's  License,   11   Pa.  Co.   Ct.  R.  Pa.  St.  330,  18  Atl.  8. 

406.  35.  Matter  of  Ryon,  85  App.  Div. 

SO.  Meenan's  License,  11  Pa.  Super.  (N.  Y.)   621,  83  N.  Y.  Supp.  123. 

Ct.   579.  36.  Matter  of  Rasquin,  37  Misc.  R. 

81.  Carey's  License,  11  Pa.  Co.  Ct.  (N.  Y.)    603,  76  N.  Y.  Supp.  404. 

R.  4f,,s.  Evidence    not    supporting    al- 

?.2.  People    v.    Woodman,    15    Daly  legation     of     not     signing     con- 

(N.    Y.)    136,    3    N.   Y.    Supp.    926;  sent. — Where  one  alleges  as  a  ground 

Tierney's  License,   11   Pa.   Co.   Ct.  R.  for  cancelling  a  certificate  that  he  did 

406.  not  sign    the  consent  which   purports 

33.  State  ex  rel.  Coulin  v.  City  of  to   bear  his   signature   and  the  clear 


§  311]  REVOCATION,    SURRENDER    AND    REBATE.  357 

Pennsylvania  it  is  decided  that  an  application  to  revoke  a  retail 
liquor  license  on  the  ground  of  the  falsen<  ss  of  <•<  rtain  statements 
made  in  the  certificate  accompanying  the  application,  is  in  the 
nature  of  an  application  to  open  a  final  order,  judgment  or 
decree  regular  on  its  face  and  after  due  hearing,  and  the  mak<  rs 
of  such  an  application  must  show  that  the  facts  they  set  up  were 
not  known  to,  or  could  not  have  been  ascertained  by,  them  prior 
to  the  granting  and  issuing  of  the  license.  Such  a  proceeding  is 
entirely  different  from  that  provided  by  statute  for  the  revocation 
of  a  license  upon  the  ground  that  the  licensee  has  violated  the 
law  relating  to  the  sale  of  liquor.:i7  The  truthfulness  of  the 
statement  in  an  application  must  upon  proceedings  to  revoke 
the  certificate  be  judged  by  the  court  as  of  the  time  when  the 
application  was  made.38  But  it  has  been  declared  that  declara- 
tions made  in  the  application  should  not  be  strictly  construed 
against  the  applicant  where  there  was  an  evident  intention  on  his 
part  to  comply  with  the  spirit  of  the  law.39  And  the  false  state- 
ment which  will  justify  a  revocation  under  the  statute  in  ISTew 
York  must  relate  to  some  material  matter  of  fact  and  it  must  be 
shown  that  such  fact  was  wilfully  withheld  by  the  applicant.40 


preponderance  of  evidence  shows  that  Compare    Lyman    v.     Murphy,     3.3 

he  did  in   fact    sign   it   t he  proceeding  Misc.  R.   (X.  Y.)   349,  68  N.  V.  Supp. 

should  be  dismissed.    Matter  of  Whit-  490,  holding  that   where  an  applicant 

taker,  63  App.  Div.    (N.  Y.)    442,  71  for  a   liquor  tax  certificate   failed  to 

N.  Y.  Supp.  407.  procure  the  requisite  number  of  con- 

37.  Schmitt's  License,  37  Pa.  Super.  sents  within  the  required  distance,  the 
Ct.   420.  facts   that   he    in   good    faith    believed 

38.  Matter  of  Barnard,  48  App.  that  he  had  procured  a  sufBcienl  mini- 
Div.  (X.  V.)  423,  63  N.  Y.  Supp.  ber,  that  he  had  employed  a  competent 
255.  agent  to  secure  them  and  that    those 

3D.  Matter  of  Purdy.  40  App.  Div.  which    were    lacking    had    since    been 

(X.   Y.)    133,    ~>7    X.    V.   Supp.    t\2'.):  supplied,  were  held  no!  to  prevent  the 

compare  Lyman  v.  Murphy.  '■'>'■'.  Misc.  revocation  of  the  certificate,  it   being 

R.     (X.    Y.)     C49,    68    X.    Y.    Supp.  declared  that  the  good  faith  of  the  ap- 

190.  plicanl  was  nol  involved  in  these  pro- 

40.  Matter   of    Kessler,    1'!.'!    X.    Y.  ceedings  under  the  statute. 

205,  57  X.  E.  40-2.  r<  o'g    I  1  App.  Div.  'When    in    a    proceeding    taken 

635,   60   X.   Y.    Supp.    1141.  after  the  voluntary  surrender  of 


3G8 


REVOCATION,  SURRENDER  AND  REBATE. 


[§  312 


So  in  Xew  York  it  has  been  decided  that  a  liquor  tax  certificate 
cannot  lawfully  be  revoked  because  a  person  applying  for  it  for 
premises  which  were  occupied  exclusively  as  a  hotel  on  March 
28,  1896,  innocently  and  in  good  faith  made  in  his  application  the 
misstatement  that  the  premises  had  since  been  continuously 
occupied  as  a  hotel.41  And  a  misstatement  which  relates  to  some 
matter  of  law,  as  to  which  the  applicant  is  ignorant  or  misin- 
formed, will  not  be  sufficient  to  warrant  the  court  in  cancelling 
a  certificate.42 

§  312.  Statement  as  to  continuous  occupation — suspension  by  fire 
or  accident. 
A  statute  providing  for  an  exemption  from  consents  where  a 
place  has  been  continuously  occupied  for  the  traffic  since  the 
taking  effect  of  the  act  does  not  require  that  the  traffic  shall  be 
continuous  under  any  and  all  circumstances.  Therefore  a  license 
will  not  be  revoked  on  the  ground  that  a  statement  in  the  applica- 
tion that  it  has  been  so  occupied  was  false,  where  it  appears  that 
there  had  been  a  mere  temporary  suspension  as  the  result  of  a 
fire.43     So  under  an  ordinance  providing  that  where  a  building 


a  liquor  tax  certificate  in  New  York, 
its  revocation  is  sought  for  the  sole 
purpose  of  forfeiting  the  rebate  al- 
lowed for  the  unexpired  term  upon 
a  charge,  which  is  not  sustained,  that 
the  holder  had  made  a  material  false 
statement  in  his  application  therefor, 
the  specifications  of  its  alleged  falsity 
fall  with  the  charge  and  cannot  be 
used  for  the  purpose  of  implying  and 
defining  some  reason,  permissible  to 
be  implied  by  the  phrase  "  any 
other  reason "  used  in  the  statute, 
which  will  sustain  a  conviction  of 
not  being  entitled  to  hold  the  cer- 
tificate. Matter  of  Lyman,  1G3  N.  Y. 
536,  r,7  N.  E.  745. 

41.  Matter  of  Brewster,  39  Misc.  R. 
(N.  Y.)    689,  80  N.  Y.  Supp.  666. 


42.  Matter  of  Kessler,  163  N.  Y. 
205,  57  N.  E.  402,  rev'g  44  App.  Div. 
635,  60  N.  Y.  Supp.  1141. 

43.  Matter  of  Kessler,  163  N.  Y. 
205,  57  N.  T.  402,  rev'g  44  App.  Div. 
635,  60  N.  Y.  Supp.  1141.  The  court 
said:  "The  plain  purpose  of  the  law 
was,  that  when  the  business  in  such 
places  has  once  been  abandoned,  it 
should  not  be  resumed  except  with  the 
consent  of  the  residents,  as  pointed 
out  in  the  statute.  A  temporary  sus- 
pension of  the  traffic,  resulting  from 
an  accident  such  as  the  destruction  of 
the  building  by  fire,  or  the  like,  will 
not  operate  to  affect  the  right  at- 
tached to  the  premises  under  the 
law."     Per  O'Brien,  J. 


§    313]  REVOCATION,    SIKKKNDLK    AND    REBATE.  ;;i;:t 

has  been  constantly  occupied  as  a  barroom  and  has  not  changed 
its  identity  since  the  time  it  was  so  occupied,  it  shall  not  be  neces- 
sary to  obtain  a  permit  from  the  city  council  in  accordance  with 
the  existing  laws  and  ordinances  a  building  which  has  been  used 
for  many  years  as  a  barroom  does  not  lose  its  identity  within  the 
meaning  of  such  ordinance  by  the  reason  of  it  being  temporarily 
uninhabitable  by  reason  of  a  fire,  and  the  action  of  the  city  council 
in  revoking  the  license  on  that  ground  is  arbitrary  and  illegal.44 
But  it  has  been  held  that  a  hotel  has  not  been  continuously  oc- 
cupied since  a  certain  date  where  it  appears  that  subsequent  to 
that  date  a  considerable  portion  of  it  has  at  various  times  been 
rented  to  tenants  and  used  for  other  purposes.45 

§  313.  Violation  of  law — conviction  for. 

Where  a  liquor  tax  certificate  can  be  forfeited  for  a  violation 
of  the  law  by  the  holder  only  upon  conviction  for  such  offense 
and  where  there  has  been  no  such  conviction  a  proceeding  to 
revoke  cannot  be  maintained.46  Cognizance  may  be  taken  by 
commissioners  of  an  application  to  revoke  a  licence  on  the  ground 
of  a  violation  of  the  law  by  the  licensee  while  a  criminal  prosecu- 
tion is  pending  against  him  for  the  same  violation.47  And  it 
has  been  decided  that  the  discharge  of  a  certificate  holder  in 
criminal  proceedings  instituted  for  the  same  violation  for 
which  a  citizen  seeks  to  procure  a  cancellation  of  the  certificate 
does  not  bar  the  latter  proceeding.48     The  word  "  conviction  "  as 


44.  Graziano     v.     City     of     New  therefor  and  if  the  defendant  Beta  up 

Orleans.  121   La.  440,  46  So.  566.  any  matter  of  excuse  he  baa  the  bur- 
in. Matter  of  Brewster,  3!)  Misc.  R.  dent  to  establish  it.     Davis  v.  Repp. 

(N.  Y.)    689,  80  N.  Y.  Supp.   666.  (N.  J.  S.  C.  1010).  75  Atl.  169. 

46.  Matter  of  Lyman,  44  App.  Div.  47.  La    Croix    v.    County    Commis- 

(N.  Y.)  507,  citing  Matter  of  Lyman,  siners.    50    Conn.    321,    47    Am.    Dec. 

160  N.  Y.  96,  54  N.  E.  577.    See  note,  648. 

32  N.  Y.  Ann.  Rev.  Ed.  1051.  *s-  Matter   of   Schuyler,    32    Misc. 

The  burden  of  proof  is  on   the  R.    (N.  Y.)   2-2\.  66  X.  V.  Supp.  251. 

one   seeking   to    revoke    a    license    to  Compare  opinion  in  Matter  of  Lyman, 

show  a  violation   which   is  a  ground  160  N.  Y.  96,  102,  54  N.  Y.  E.   577. 


370 


REVOCATION,  SURRENDER  AND  REBATE. 


[5  313 

used  in  a  statute  authorizing  a  revocation  of  a  license  in  case  of  a 
conviction  for  a  violation  of  the  law  means  a  final  judgment 
establishing  guilt.49  A  person  has  been  "  convicted  of  a  felony  " 
within  the  meaning  of  the  New  York  Liquor  Tax  Law  where  he 
has  pleaded  guilty  to  receiving  stolen  goods,  though  sentence  has 
been  suspended,  and  in  such  a  case  the  certificate  is  void  ab  initio 
and  a  mesne  assignee  is  not  entitled  to  surrender  it  and  obtain 
a  rebate  though  no  steps  have  been  taken  to  cancel  it  or  to  recover 
the  statutory  penalties  and  though  more  than  thirty  days  have 
elapsed  since  the  certificate  was  surrendered.50  Where  a  munic- 
ipal ordinance  providing  for  the  licensing  of  saloons  provides 
that  two  convictions  of  the  license  holder  for  violation  of  the 
ordinance  or  of"  the  state  law,"  or  one  conviction  of  violation  of 
the  ordinance  and  one  of  "  the  state  law  "  shall  be  ground  for  a 
revocation  of  the  license,  the  state  law  referred  to  is  the  state 
law  or  laws  governing  the  business  of  selling  liquors,  and  a  con- 
viction for  violating  a  state  law  other  than  the  law  relating  to  the 
business  of  liquor  selling  cannot  be  made  the  ground  of  revoca- 
tion under  the  ordinance.51 


49.  Commonwealth  v.  Kiley,  150 
Mass.  325,  23  N.  E.  55. 

Though  a  sentence  imposed 
after  a  plea  of  nolo  contendere 

amounts  to  a  conviction  in  the  case 
in  which  the  plea  is  entered  a  court 
record  containing  such  a  plea  and 
showing  a  conviction  thereon  is  not 
admissible  in  another  proceeding,  such 
as  the  abatement  of  a  liquor  nuisance, 
to  show  that  the  defendant  was  guilty. 
White  v.  Creamer,  175  Mass.  507,  56 
N.  E.  832. 

A  judgment  by  the  licensing 
board  that  the  licensee  has  violated 
the  law  has  been  held  sufficient  in  a 
recent  case  in  New  Jersey  where  a 
proceeding  had  been  brought  to  re- 
voke a  license  it  being  declared  that 


a  conviction  before  a  court  of  law 
was  not  necessary.  Sawicki  v.  Keron 
(N.  J.    S.    C.   1910),  75  Atl.  477. 

50.  People  ex  rel.  Lawton  v.  Ly- 
man, 33  Misc.  R.  (N.  Y.)  243,  68  N. 
V.   Sup]».   331. 

51.  Cox  v.  Common  Council  of 
Jackson,  152  Mich.  630,  116  N.  W. 
456.  The  court  said  that  "any 
other  meaning  would  make  the  pro- 
visions of  the  ordinance  insensible. 
The  ordinance  does  not  say  ' a  state 
law.'  The  words  employed  in  various 
places  in  the  ordinance  are  'the  State 
law,'  and  in  one  portion  of  the  ordi- 
nance which  has  been  set  out,  and  in 
the  same  connection,  express  reference 
is  made  to  the  liquor  law."  Per 
Ostrander,  J. 


68  314  315,316]    REVOCATION,    SURRENDER    AND    REBATE.       ;;7i 

§  314.  License  to  partners. 

Where  ;i  liquor  tax  certificate  is  issued  to  a  partnership,  the 
violation  of  the  statute  essential  to  a  forfeiture  of  the  right  to  a 
rebate  under  the  New  York  Liquor  Tax  Law  may  be  by  one  of 
the  partners  alone  as  such  a  violation  is  in  legal  effect  a  violation 
by  the  partnership.52  And  where  a  dram  shop  keeper  is  convicted 
by  a  jury  of  violating  his  license,  whether  he  is  keeping  for  him- 
self alone  or  in  co-partnership  with  another,  the  license  should 
be  declared  forfeited  whether  it  was  issued  in  his  name  or  an- 
other's.53 

§  315.  License  to  club  organized  to  evade  law. 

A  license  or  liquor  tax  certificate  issued  to  a  club  may  be 
revoked  where  it  appears  that  the  club  was  not  organized  and 
did  not  conduct  its  business  in  good  faith  so  as  to  bring  it  within 
the  provisions  of  the  law  relating  to  clubs  but  was  rather  organ- 
ized for  the  purpose  of  evading  the  law.54 

§  316.  Licenses  to  hotels. 

In  some  states  statutes  have  been  passed  which  are  especially 
applicable  to  hotels  and  which  contain  provisions  as  to  certain 
requirements  such  as  the  number  and  size  of  rooms  therein, 
compliance  with  which  is  essential  to  the  obtaining  of  a  license 
to  sell  liquors  in  connection  with  such  business.  And  where  the 
licensee    has    not    complied    with    such    requirements    or    falsely 

.-,-.  People   v.    Lyman,    156   X.    Y.  upon   which   the   order   was   granted 

407,  50  N.   E.   111-.  upon    the    person    in    charge    <>f    the 

Service  on  person  in  charge  of  premises    at    the    time    the    service    is 

premises.— Where  a    liquor  tax    cer-  made.    Matter    of   Cullinan,    68 

tificate  is  issued  to  a  firm  it   is  held  Div.    (X.   V.)    119,   71    X.   V.    Supp. 

sufficient    to  give  the   court    jurisdic-  182. 

t ion  of  proceedings  to  cancel  the  cer-  63.  Ballentine  v.  State,  -JS  Ark.  45, 

tificate  againsl   the  members  of  such  '2  S.  W.  •'!!<>. 

firm  to  serve  the  order  to  show  cause  •"•  »■   Matter  of  Lyman,  28  App.  Div. 

why    it    should    not     he    cancelled    to-  (X.  Y. )    200,  50  X.   Y.   Supp.  808. 
gether  with  the  petition  and  affidavit 


372 


REVOCATION,    SURRENDER    AND    REBATE. 


[§   316 


represents  in  his  application  that  he  has,  it  is  a  ground  for  re- 
voking his  license.  So  it  is  decided  in  New  York  that  where  it 
appears  that  the  bedrooms  did  not  comply  with  the  requirements 
of  the  Liquor  Tax  Law  at  the  time  of  the  granting  of  the  certificate 
for  a  hotel  such  certificate  should  be  revoked.55  But  the  fact  that 
there  were  not  the  specified  number  of  rooms  in  a  building  at 
the  time  an  application  for  a  liquor  tax  certificate  was  filed  for 
premises  described  as  a  hotel  is  held  not  to  be  a  sufficient  ground 

for  revoking  the  certificate  where  it  appears  that  there  was  the 
necessary  space  for  the  required  rooms  and  that  at  such  time  the 
rooms  were  being  prepared  and  were  in  fact  completed  and  fur- 
nished in  accordance  with  the  statutory  requirements  shortly 
after  the  certificate  was  granted.56  Where  a  sale  of  liquor  on 
Sunday  is  alleged  as  the  ground  for  revoking  a  liquor  tax  cer- 
tificate the  holder  thereof  must,  if  he  relies  on  the  exception  in 
favor  of  hotel  keepers,  plead  and  prove  the  facts  bringing  him 
within  the  exception.57     In  proceedings  under  the  New  Jersey 


55.  Matter    of   Ryon,    39    Misc.    R. 
(N.  Y.)    098,  80  N.  Y.  Supp.   1114. 

New   York   Law   of    1905    con- 
stitutional.—Chapter     G97     of     the 

laws  of  1905  providing  for  the  re- 
vocation of  any  hotel  liquor  tax  cer- 
tificate which  has  been  issued  for  a 
place  which  "  does  not  comply  with 
the  provisions  of  the  liquor  tax  law 
as  to  hotels  "  is  not  unconstitutional 
for  failure  to  provide  for  notice  of 
all  proceedings  thereunder  to  holders 
of  liquor  tax  certificates  issued  be- 
fore its  enactment,  and  is  not  a  de- 
privation of  property  without  due 
process  of  law.  People  ex  rel. 
Laughran  v.  Flynn,  48  Misc.  R.  (N. 
v.      L59,  90  N.  Y.  Supp.  053. 

56.  Matter  of  Purdy,  40  App.  Div. 
(X.  Y.)    133,  57  N.  Y.  Supp.  029. 

57.  Matter    of    Schuyler,    63    App. 
Div.  (X.  Y.)  200,  71  N.  V.  Supp.  437. 

What  is  a  hotel  within  mean- 


ing of  law.— A  place  kept  for  enter- 
taining strangers  or  travelers  and 
which  receives  all  who  come  to  it 
without  any  previous  agreement  as  to 
length  of  stay  or  terms  of  entertain- 
ment is  a  "  hotel  "  within  the  Liquor 
Tax  Law.  And  to  be  a  hotel  it  need 
not  keep  a  safe  for  valuables  or  have 
a  register  for  guests  or  provide  stable 
accommodations.  And  the  display  of 
a  sign  "  Boarding  house  "  is  not  con- 
trolling as  to  its  character.  Matter 
of  Brewster,  39  Misc.  R.  (N.  Y.)  689, 
80  N.  Y.  Supp.  000. 

A  person  does  not  become  a 
"  guest  "  within  the  meaning  of  the 
Liquor  Tax  Law  by  the  mere  service 
to  him  of  a  sandwich,  where  the  ser- 
vice of  sandwiches  is  a  mere  pretext 
to  evade  the  law.  Matter  of  Schuy- 
ler, 03  App.  Div.  (N.  Y.)  200,  71 
N.   Y.   Supp.   437. 

The    question    as    to    who    is    a 


§    3101  REVOCATION,    SURRENDER    AND    REBATE.  373 

statute  for  the  forfeiture  of  a  license  of  an  inn  and  tavern  for 
non-compliance  with  the  provision  that  "  if  the  license  be  not  in 


guest  is  also  considered  in  a  case  in 
the  District  of  Columbia.  In  this 
ease  it  appeared   that   two  members 

of  the  police  forca  of  the  District  of 
Columbia,  dressed  in  citizen's  clothes' 

entered  the  cafe  of  the  Norraandie 
Hotel  in  the  city  of  Washington  on 
the  date  named  in  the  information, 
and  seated  themselves  at  a  table. 
They  were  the  only  patrons  in  the 
room  at  the  time.  They  called  a 
waiter  and  ordered  two  bottles  of 
beer.  The  waiter  called  the  head 
waiter,  who  informed  them  that  the 
manager  had  directed  them  not  to 
serve  liquors  on  Sunday  to  any  per- 
sons excepting  bona  fide  guests  of 
the  hotel  at  their  meals  or  in  their 
rooms.  The  further  conversation  that 
occurred  at  this  time  is  not  disclosed 
by  the  record,  but  it  appears  that 
the  head  waiter  brought  the  hotel 
register  down  from  the  office  and  the 
two  policemen  registered.  They  then 
ordered  a  cheese  sandwich  and  a  bot- 
tle of  beer  each.  They  were  served. 
The  policemen  ate  the  sandwiches  and 
drank  the  beer,  after  which  they  each 
ordered  a  highball,  which  was  served 
by  the  same  waiter.  After  drinking 
the  highballs  they  paid  their  bills  and 
left  the  hotel.  Subsequently,  the  de- 
fendant was  arrested,  and  the  above 
information  was  filed  against  him. 
The  court  after  stating  the  facts  as 
above  said  as  follows : 

"This  prosecution  is  instituted  un- 
der the  act  of  Congress  of  March  15, 
1803,  forbidding  the  sale  of  intoxi- 
cating liquor  on  Sunday.  The  act 
contains  the  following  proviso:  -'Pro- 
vided that  the  keeper  of  any  hotel  or 
tavern  having  a  license  under  this 
act  may  sell  intoxicating  liquors  to 
bona  fide  registered  guests  in  his 
hotel   or  tavern   at  the  meals   or   in 


the  rooms  of  such  guests."  The  only 
question  in  this  case  is  whether  the 
sale  of  the  liquor  to  the  two  police- 
men, as  above  outlined,  constituted  a 
bona  fide  sale  to  registered  guests  of 
the   hotel. 

We  are  of  the  opinion  that  the 
mere  bring  of  the  register  from  the 
hotel  office  down  into  the  cafe,  and 
the  signing  of  the  same  by  the  wit- 
nesses, was  not  sufficient  to  make 
them  bona  fide  registered  guests  of 
the  hotel.  This  is  not  a  new  device 
conceived  by  hotel  keepers  for  evad- 
ing the  enforcement  of  liquor  laws. 
It  has  frequently  been  adopted  by 
hotel  keepers  and  others,  and  has 
been  generally  discountenanced  by 
the  courts.  The  courts  frown  upon 
any  trick,  artifice,  or  subterfuge  de- 
vised for  the  evasion  of  the  provisions 
of  a  criminal  statute.  Especially  is 
this  true  in  relation  to  statutes  reg- 
ulating the  manufacture  and  sale  of 
intoxicating  liquors.  The  whole  sub- 
ject of  the  manufacture  and  sale  of 
intoxicating  liquors  in  this  country 
has  become  one  of  police  regulation. 
It  is  only  permitted  under  license 
and  within  close  restrictive  limita- 
tions, and  a  statute  defining  such  re- 
strictions should  he  so  construed  as 
to  keep  the  licensee  strictly  within 
its  provisions.  An  enlightened  pub- 
lic sentiment  no  longer  regards  it  as 
a  natural  and  inherent  right  in  the 
citizen  either  to  manufacture,  sell. 
or  use  intoxicating  liquor.  The 
power  to  place  a.  limitation  upon  the 
-ile  and  manufacture  of  intoxicating 
liquor  implies  the  power  to  place  a 
limitation  upon  its  use.  The  whole 
question  is  one  for  police  supervision, 
and  the  legislation  on  the  subject  is 
for  tin-  protection  of  society,  and,  as 
such,  embraces  within  its  limitations 


374 


REVOCATION,    SURRENDER    AND    REBATE. 


[§    316 


an  inn  and  tavern,  or  a  hotel  having  at  least  ten  spare  rooms 
and    beds    for    the    accommodation    of    boarders,    transients    and 


not   only   the   manufacture   and   sale, 
but   the   use   of   intoxicating   liquors. 

»         *         *         *  *  * 

In  a  leading  case  in  Massachusetts, 
the  court  said:  "It  is  not  worth 
while  to  consider  whether  a  person 
who  resorts  to  an  inn  for  the  purpose 
of  drinking  becomes  thereby  a  guest 
within  any  meaning  of  the  word.  As 
used  in  the  statute,  the  word  is  de- 
fined by  the  statute  itself  and  lim- 
ited to  persons  who  resort  to  the 
house  for  food  and  lodging,  and 
clearly  excludes  those  who  resort 
there  for  the  purpose  of  procuring 
and  drinking  intoxicating  liquor." 
Commonwealth  v.  Hagan,  140  Mass. 
289 ;  Commonwelath  v.  Moore,  145 
Mass.  244.  This,  we  think,  is  the 
proper  test  to  be  applied  in  the  en- 
forcement of  the  statute  here  under 
consideration.  Did  these  two  police- 
men resort  to  the  hotel  for  the  pur- 
pose of  securing  food  or  lodging  and 
thereby  become  bona  fide  guests  of 
the  hotel?  If  they  did,  then  the 
service  of  the  intoxicating  liquors 
was  a  mere  incident  to  the  general 
purpose  for  which  they  resorted  to 
the  hotel.  On  the  other  hand,  if  they 
went  to  the  hotel  for  the  purpose  of 
securing  intoxicating  liquors,  then 
the  registering  and  service  of  a  sand- 
wich became  mere  incidents  to  their 
general  purpose  in  going  there.  We 
think  it  clearly  appears  from  the  evi- 
dence in  this  case  that  their  purpose 
in  going  to  the  hotel  was  to  secure 
intoxicating  liquors,  and  not  to  be- 
come bona  fide  guests  thereof.  And, 
we  arc  further  convinced  that  the 
plaint  iff  in  error  so  regarded  the  ob- 
ject of  their  visit,  and  in  serving 
them,  attempted  by  a  mere  pretext 
to  escape  the  plain  restrictions  of 
the  law. 


This  is  in  full  accord  with  the 
former  holdings  of  this  court.  In 
Lehman  v.  District  of  Columbia,  19 
App.  D.  C.  217,  231;  30  Wash.  Law 
Rep.,  87,  the  court  said:  "  It  is  very 
clear  from  the  testimony  that  the 
persons  to  whom  such  beer  was  being 
served  were  not  registered  guests  of 
the  hotel,  at  least,  were  not  bona  fide 
registered  guests.  If  such  they  were, 
it  was  incumbent  on  the  defendant 
to  show  the  fact,  which  he  might 
very  readily  have  done,  if  he  desired 
to  bring  himself  within  the  exceptions 
of  the  proviso,  which  allows  the  sale 
of  intoxicating  liquors  by  keepers  of 
hotels  on  Sunday  to  the  registered 
guests  of  their  houses.  ...  It  was 
in  evidence  that  there  was  a  very 
large  number  of  persons  on  the  prem- 
ises who  were  supplied  with  liquor 
from  the  barroom  of  the  defendant, 
and  that  some  of  these  also  were 
supplied  with  sandwiches.  The  claim 
of  the  defendant  was  that  he  supplied 
liquor  to  none  but  bona  fide  registered 
guests.  The  question,  therefore,  was 
distinctly  raised  as  to  what  consti- 
tuted a  bona  fide  registered  guest, 
to  whom  intoxicating  liquor  could  be 
lawfully  sold  on  Sunday;  and  the 
trial  court  did  not  err  in  holding  that 
there  must  be  actual  bona  fides  or 
good  faith  in  the  transaction." 

The  question  of  whether  or  not  the 
two  policemen  in  this  case  were  bona 
fide  guests  at  the  hotel  is  one  of  fact, 
which,  had  the  case  been  tried  before 
a  jury,  would  have  been  submitted  to 
the  jury  for  determination.  It  was 
incumbent  upon  the  plaintiff  in  er- 
ror to  show  that  these  persons  were 
such  guests.  The  court  below  found 
from  the  evidence  that  plaintiff  in 
error  had  failed  to  discharge  this 
burden.      We   think   the   court   prop- 


§  317] 


REVOCATION,    SURRENDER    AND    REBATE. 


375 


travelers,"  the  interior  shall  be  exposed  to  view  from  the  street  at 
all  times  when  the  sale  of  liquor  is  prohibited  by  law,  the  com- 
plaint must  set  forth  that  the  inn  and  tavern  whose  license  is 
sought  to  be  forfeited  did  not  have  such  accommodations  for 
guests  as  to  bring  it  within  the  class  exempted  by  the  statute.68 

§  317.  Petition  for  revocation. 

Tho  petition  should  allege  the  granting  or  issuance  of  a 
license.59  And  to  confer  jurisdiction  the  petition  for  revocation 
must  comply  with  the  statute  and  where  the  statute  requires  that 
the  petition  shall  state  the  facts  upon  which  the  application  is 
based  a  petition  in  which  all  the  mat*  rial  facts  are  stated  upon 
information  and  belief  without  disclosing  the  sources  of  the  in- 
formation or  the  grounds  of  the  belief  is  not  a  sufficient  basis  for 
judicial  action.60  And  the  provision  that  the  petition  shall  state 
the  facts  upon  which  the  application  is  based,  implies  that  no 
charges  are  to  be  considered  upon  the  bearing  except  such  as  are 


erly  interpreted  the  evidence  and  we 
find  no  reason  to  disturb  its  conclu- 
sion." Per  Mr.  Justice  Van  Orsdel, 
in  Cake  v.  District  of  Columbia,  37 
Wash.  Law  Rep.   354. 

58.  Cuirczak  v.  Keron  (Xf.  J.  L. 
1908),  7i)   Atl.  366. 

59.  Quisl  v.  American  Bonding 
Trust  Co.,  74  Neb.  692,  105  X.  W. 
•_'.v>. 

<:<►•  Matter  of  Peck  v.  Cargill,  1(17 
N.  V.  391,  tin  X.  E.  775,  53  L.  R.  A. 
888,  rev'g  .".7  App.  Div.  635,  68  X.  Y. 
Supp.  1145,  and  holding  also  that 
the  provision  of  the  statute  as  to  an 
order  by  default  on  failure  to  tile  a 
verified  answer  does  not  dispense  with 
the  necessary  allegations  and  proof 
of  the  fads  constituting  the  offense. 

Petition  accompanied  by  affi- 
davits.— ruder  the  New  York  Tax; 
Taw  providing  thai  the  farts  upon 
which    an     application    to    revoke     a 


tax  certificate  shall  be  stated  in  the 
petition  it  is  held  sufficient  in  other 
cases  if  the  petition  is  made  upon 
information  and  belief  and  is  accom- 
panied by  affidavits  which  are  made 
a  part  of  such  petition  and  which 
state  in  detail  the  facts  upon  which 
the  petition  is  based.  Matter  of 
Cullinan,  70  App.  Div.  (X.  Y.)  3G2, 
7s  X.  Y.  Supp.  466;  Matter  of  Culli- 
nan, 40  Misc.  R.  (X.  Y.)  423,  82 
X.  Y.  Supp.  :537. 

The  affidavit  verifying  the 
complaint  in  a  proceeding  to  revoke 
a  license  should  it  has  been  decided 
under  a  New  Jersey  statute,  set  out 
ular  \  Lolal  ions  of  the  law 
upon  which  the  complaint  is  based 
ami  should  attest  the  proof  thereof. 
Voighi  v.  Board  of  Excise,  Com'rs  of 
City  of  Newark,  59  X.  J.  L.  358,  36 
Atl.  686.  :i7  L.  K.  A.  292. 


376  REVOCATION,    SURRENDER    AND    REBATE.   [§§   318,319 

contained  in  the  petition  as  originally  framed  or  such  as  may 
properly  be  introduced  by  amendment  in  the  course  of  the  pro- 
ceeding.61 

§  318.  Answer. 

"While  the  holder  of  a  liquor  tax  certificate  is  not  required  to 
file  a  verified  answer  in  proceedings  to  revoke  it,  upon  the  ground 
that  it  may  tend  to  incriminate  him,  yet  it  is  held  that  this  reason 
does  not  apply  to  a  party  other  than  the  holder  asking  to  intervene, 
and  he  should  be  required  to  answer.62  But  there  is  a  waiver  by  a 
holder  of  a  liquor  tax  certificate  of  his  constitutional  right  to 
refuse  to  answer  under  oath  in  proceedings  to  cancel  such  cer- 
tificate where  he  interposes  a  verified  answer.63  Where  the  an- 
swer of  a  proposed  transferee  of  a  liquor  tax  certificate  fails  to 
deny  the  excise  commissioner's  allegation  that  the  building  did 
not  comply  with  the  statute,  there  is  no  material  issue  before 
the  court  and  it  will,  without  a  reference  and  upon  proof  of  mere 
formal  matters,  revoke  the  certificate.64 

§  319.  Parties. 

Any  citizen  though  not  a  taxpayer,  may  under  the  New  York 
Law  of  1896,  petition  for  the  revocation  of  a  liquor  tax  certificate 
where  he  claims  that  the  holder  was  not  originally  entitled  to  it, 
and  the  fact  that  the  holder  has  never  been  convicted  of  a  viola- 
tion of  the  statute  is  not  material  and  affords  him  no  defense.65 


61.  Matter  of  Plass,   71   App.   Div.  of  reversing  an  order  appealed  from. 

(N.  Y.)   488,  76  N.  Y.  Supp.  2,  hold-  62.  Matter  of   Jennings,    130   App. 

ing  that  in  order  to  render  available  Div.    (N.   Y.)    645,    115  N.   Y.   Supp. 

evidence  of  violations   of  the  Liquor  457 

Tax  Law  not  alleged  in  the  petition  ft3    Matter    Qf    Cul]inarij    76    App. 

the  proper  course  is  to  move  at  Spec-  _       __   __ 

.       '                          .  ..          ....          '  Div.     N.  Y.)  362,  78  N.  Y.  Supp  466. 

lal  Term  to  amend  the  petition  so  as  * l 

to  conform  to  the  proof  as  the  Appel-  64,  Matter    of    Cullinan,    39    Misc. 

late  Division  can  not  amend  the  peti-  R    (N.  T.)   646,  80  N.  Y.  Supp.  626. 

tion,   or   deem    it   amended,   so   as   to  65.  Matter  of  Halhran,  30  Misc.  R. 

conform  to  the  proof  for  the  purpose  (N.  Y.)    515,  63  N.  Y.  Supp.  1024. 


§   320]  REVOCATION,    SURRENDER    AND    REBATE.  377 

Arid  where  by  statute  the  authority  to  present  a  petition  asking 
for  the  revocation  of  a  license  is  given  to  certain  officials  and  to 
a  taxpayer  of  the  county  where  the  license  is  issued,  the  petition 
must  contain  an  allegation  that  the  petitioner  is  either  one  of 
the  officials  designated  or  such  a  taxpayer.86  Where  a  citizen 
seeks  a  revocation  of  a  liquor  tax  certificate,  the  proceeding  must 
be  brought  against  the  person  who  is  at  the  time  the  hold<  r  thereof 
and  where  it  is  wrongly  brought  against  the  original  holder,  there 
is  no  authority  for  bringing  in  his  assignee  and  the  proceeding 
should  be  dismissed.07  The  assignee  of  a  liquor  tax  certificate 
is  not  entitled  to  be  made  a  party  to  a  proceeding  to  cancel  a 
liquor  tax  certificate.08  And  a  pledgee  is  not  entitled  to  be  served 
with  a  petition  and  order  to  show  cause  why  the  certificate  should 
not  bo  revoked  as  he  is  not  a  "  holder  of  the  certificate  "  within 
the  meaning  of  the  statute.69 

§  320.  Who  may  intervene. 

The  assignee  of  a  liquor  tax  certificate  may  be  allowed  by  the 
court  to  intervene  in  proceedings  for  its  revocation.70  And 
although  the  Liquor  Tax  Law  in  New  York  only  requires  the 
holder  of  a  certificate  to  be  made  a  party  to  a  proceeding  to 
revoke  it  for  violation  of  the  statute,  lessees  of  the  premises  and 
those  owning  fixtures  therein,  on  showing  that  the  premises  are 
only  suitable  for  saloon  purposes,  should  be  permitted  to  inter- 
vene and  defend  for  an  adjudication  revoking  the  certificate  will 
prevent  the  use  of  the  premises  for  traffic  in  liquor  for  one  year 
to  the  injury  of  their  property  rights.  And  it  is  decided  that 
such  intervening  parties  should  be  allowed  to  participate  in  the 


6C.  Smaw  People  ex  rel.  v.  Mc-  R.  (N.  Y.)  514,  lis  X.  V.  Su|>]>.  G13. 
(Jowan,  44  App.  Div.    (N.  Y.)    30,  GO  *'>■>•  Matter  of   Lyman,  -jr.   Misc.  R. 

N.  Y.  Supp.    107.  (N.  Y.)   300,  56  X.  V.  Supp.  1020. 

cr.  Nieland  v.  McGrath,  20  Misc.         70.  Matter    of    Cullman,    94    App. 

R.    (N.  Y.)   682,  62  N.  Y.  Supp.  760.  Div.  (N.  Y.)  445,  88  N.  Y.  Supp.  164. 

6S.  Clement    v.    Viscosi,    63    Misc. 


378 


REVOCATION,  SURRENDER  AND  REBATE. 


[§  321 

hearing,  to  present  any  material  evidence  and  to  contest  the 
proceedings  in  all  stages  for  the  protection  of  their  property 
rights,  including  the  right  of  appeal.71  Parties  intervening  at 
their  own  request  in  the  proceedings  to  revoke  a  liquor  tax  certif- 
icate in  New  York  are  bound  by  the  statutory  procedure  and  are 
not  entitled  to  a  jury  trial.72    • 


§  321.  Procedure  to  revoke. 

In  determining  the  rights  of  the  parties  and  mode  of  pro- 
cedure in  proceedings  to  revoke  a  license  recourse  should  be  had 
to  the  statute  of  the  particular  state  in  which  the  proceeding 
takes  place.73  Where  the  law  prescribes  the  mode  of  procedure 
for  the  revocation  of  a  license,  it  is  essential  to  the  validity  of  the 
proceedings  that  such  mode  be  followed.  So  where  a  municipality 
has  prescribed  by  ordinance  how  a  license  may  be  revoked  so  long 
as  the  ordinance  is  in  effect,  it  is  necessary  to  proceed  in  the 
manner  prescribed  by  it.74     And  the  witnesses  should  be  sworn 


71.  Matter  of  Jennings,  130  App. 
Div.  (N.  Y.)  645,  115  N.  Y.  Supp. 
457. 

72.  Matter  of  Jennings,  130  App. 
Div.  (N.  Y.)  645,  115  N.  Y.  Supp. 
457. 

Mode  of  obtaining  jurisdic- 
tion.— .Jurisdiction  of  the  parties  to 
and  the  subject  matter  of  a  proceed- 
ing to  revoke  a  liquor  tax  certificate 
Tinder  the  New  York  Liquor  Tax  Law 
L.  1896,  eh.  112,  §  28,  subd.  2,  is 
obtained  upon  service  of  the  petition 
and  order  to  show  cause  though  the 
petition  be  on  information  and  belief. 
Matter  of  Cullinan,  39  Misc.  R.  (N. 
Y.)   354,  79  N.  Y.  Supp.  840. 

When  court  may  order  dis- 
continuance.— The  supreine  court 
may  for  a  sufficient  cause  order  a  dis- 
continuance of  a  proceeding  taken  to 
ke  a  liquor  tax  certificate  where 
the  application  is  made  by  the  party 
who  instituted   the  proceeding  but  it 


cannot  order  a  discontinuance  on  the 
application  of  the  holder  of  the  certi- 
ficate, where  the  commissioner  of  ex- 
cise opposes  it.  Matter  of  Cullinan, 
39  Misc.  R.  (N.  Y.)  558,  79  N.  Y. 
Supp.  582. 

Effect  of  denial  of  application 
on  subsequent  application.— A  de- 
nial of  an  application  by  one  citizen 
for  the  revocation  of  a  tax  certificate 
is  not  a  bar  to  a  subsequent  applica- 
tion by  another  citizen  to  revoke  a 
later  certificate  covering  the  same 
premises.  Matter  of  McCusker,  47 
App.  Div.  (N.  Y.)  Ill,  62  N.  Y.  Supp. 
201. 

An  extension  of  the  return 
day  of  the  original  order  to  show 
cause  why  a  tax  certificate  should 
not  be  revoked  does  not  as  against  the 
assignee  of  the  certificate  have  the 
effect  cf  depriving  the  court  of  juris- 
diction. Mailer  of  Lyman,  53  App. 
Div.  330,  65  N.  Y.  Supp.  673. 


§  322] 


REVOCATION,    SURRENDER    AND    REBATE. 


379 


where  the  statute  provides  for  the  hearing  of  witnesses  on  pro- 
ceedings to  revoke,  the  board  having  the  power  to  revoke  ordi- 
narily having  the  power  to  administer  oath 

§  322.  Necessity  of  notice  of  proceeding. 

In  many  slates  it  is  provided  by  statute  that  notice  shall  be 
given  to  the  license  of  an  application  to  revoke  his  license  and 
where  it  is  so  provided  it  is  essential  that  the  required  notice  be 
given.70  And  under  a  statute  providing  that  where  it  is  sought 
to  revoke  a  license  there  shall  he  a  "  hearing  in  the  ease,"  notice 
to  the  licensee  is  provided  for  hy  implication.77  Where  a  license 
is  in  form  a  proper  license  to  a  partnership  and  will  protect  both 
partners,  it  is  unnecessary  to  give  notice  of  a  hearing  to  revoke 
it  to  more  than  one  member  of  the  firm,  as  it  is  a  license  to  a  firm 


Where  the  rule  to  show  cause 
why  a  license  should  not  be  revoked 
is  based  on  an  ex  parte  affidavit  al- 
leging that  the  licensee  had  violated 
the  law,  fairness  and  good  practice 
require  that  the  act  alleged  to  be  a 
violation  of  law  be  specified  with 
reasonable  certainty.  Meenan's  Li- 
cense, 11   Pa.  Super.  Ct.  579. 

A  stipulation  by  the  parties  to 
a  proceeding  to  revoke  a  tax  certifi- 
cate aa  to  tlic  use  of  the  premises  for 
the  sale  of  liquors  for  a  certain  length 
of  time  may  operate  to  bring  the 
premises  used  for  saloon  purposes 
within  tlie  statutory  exemption  pro- 
vided in  the  New  York  statute.  Mat- 
ter of  McCusker,  23  Misc.  K.  (X.  Y.) 
446,  .".1   \.  Y.  Bupp.  281. 

The  absence  of  a  licensee's  at- 
torney from  such  proceedings  is  not 
a  reason  for  postponing  the  investi- 
gation ami  a  refusal  to  postpone  dues 
nut  deprive  the  licensee  of  "  a  ■ 
enable  opportunity  t"  be  heard." 
State  v.  Northfield,  41  Minn.  211,  42 
X.  W.  1058. 


74.  Carbondale  v.  Wade,  10G  111. 
App.   (154. 

75.  License  Commissioners  v. 
O'Conner,  17  R.  I,  40,  19  Atl.  1080. 
See  People  v.  Wright,  3  Hun  (X.  Y.) 
306. 

70.  Kentucky. — Plummer  v.  Com- 
monwealth,  1   Bush   2U. 

New  Jersey. — Lambert   v.    Rahway, 

58  X.  J.   L.   57S.   34   Atl.   5. 

New  York. — People  ex  rel.  Friel  v. 
Commissioners  of  Exercise  <>f  City  of 
Poughkeepsie,  2  App.  Div.  89,  :!7  X. 
Y.  Supp.  485. 

Rhodi  Tslan  '.  Deignan  v.  License 
Commissioners,  16  R.  I.  727.  19  Atl 
332. 

Virginia. — Lillienfeld's  Case,  92  Va. 
SIS.  23  K.  E.  882. 

Wisconsin. — State    v.    Bradish,    95 

Wis.  20.-,.  207,  To  X.  W.  172.  :i7  I..  II. 

I ;    Common    Council    v.    State, 

59  Wis.    '  55,  18  \'.  W.  324  :  Gaertn  ■•• 

I   du    I."-.   34   Wis.  4t>7. 
77.  Young  v.   Blaisdell,   138  Mass. 

3-14. 


380  REVOCATION,    SURRENDER    AND    REBATE.  [§   323 

as  a  single  party,  and  notice  to  either  member  is  notice  to  the 
firm.7S  But  a  licensee  who  appeared  by  an  attorney  at  the  place 
and  time  designated,  and  made  an  application  for  and  obtained 
an  adjournment  on  the  licensee's  inability  to  be  present,  thereby 
removed  the  objection  of  want  of  proper  notice.79 

§  323.  Proceeding's — appointment  of  referee. 

The  power  of  the  court  in  New  York  in  proceedings  to  revoke 
a  tax  certificate  to  appoint  a  referee  to  take  testimony  and  to  re- 
port the  proof  to  the  court,  is  held  to  be  both  inherent  and  stat- 
utory.80 So  a  statute  providing  that  the  justice  or  court  may,  if 
deemed  necessary  or  proper,  take  testimony  in  proceedings  to  re- 
voke a  certificate  or  appoint  a  referee  for  that  purpose,  by  whom 
the  proof  shall  be  submitted  to  the  justice  or  court,  is  constitu- 
tional.81 And  upon  appeal  from  an  order  dismissing  a  petition  to 
revoke  a  certificate  the  petitioner  cannot  unsuccessfully  contend 
that  an  order  of  reference  directing  an  expression  of  opinion  by  the 
referee  was  not  authorized  by  the  Liquor  Tax  Law.82  But  the 
provisions  of  the  New  York  Liquor  Tax  Law  authorizing  the 
justice,  judge  or  court,  on  the  return  day  of  an  order  to  show  cause 
why  a  liquor  tax  certificate  should  not  be  cancelled,  to  cancel  the 
certificate  unless  the  holder,  if  duly  served,  then  files  a  verified 
answer  denying  all  the  allegations  alleged  are  unconstitutional, 
and  where  on  the  return  day  the  holder  refuses  to  file  such  an 
answer  and  attacks  the  constitutionality  of  the  statute  the  court 
cannot  take  testimony  or  appoint  a  referee  and  will  not  cancel  the 
certificate.83 

78.  Commonwealth    v.    Bearce,    150  81.  Matter  of  Lyman,  46  App.  Div. 
Mass.  38!),  23  N.  E.  00.  (N.  Y.)    387,  01  N.  Y.  Supp.  884. 

79.  People    v.    Haughton,    41    Hun  82.  Matter  of  Plass,  71   App.  Div. 
(N.   Y.)    558.  (N.  Y.)   488,  76  N.  Y.  Supp.  2. 

so.  Matter    of    Cullman,    03    App.  83.  Matter  of  Cullinan,  40  Misc.  R. 

Div.    (N.    Y.)    540,    87    N.    Y.    Supp.  (N.    Y.)    423,    82    N.    Y.    Supp.    337. 

817.     See  also  Matter  of  Cullinan,  97  See  also  Matter  of  Cullinan,  97  App. 

App.  Div.  (N.  Y.)  122,  89  N.  Y.  Div.  (N.  Y.)  122,  89  N.  Y.  Supp.  683. 
Supp.   683. 


§§   324,  olTi,  W,]    INVOCATION,    SURRENDEB    AND    REBATE.        38] 

§  324.  Excerising  power  to  revoke — mandamus. 

The  power  of  public  officials  to  revoke  a  license  can  only  be 
exercised  in  conformity  to  and  in  accordance  with  the  authority 
delegated.81  And  the  proceedings  of  a  licensing  board  in  re- 
voking a  license  must  show  affirmatively  that  such  board  had 
jurisdiction.85  Where  the  duty  devolves  upon  a  board  to  revoke 
a  license  for  a  specified  cause  it  may  be  campelled  by  mandamus  to 
perform  that  duty.87 

§  325.  Evidence. 

In  any  proceeding  to  revoke  a  liquor  tax  certificate  a  viola- 
tion of  the  statute  must  be  established  by  legal  proof  before  the 
certificate  can  be  cancelled.87  And  in  such  a  proceeding  the 
defendant  may  testify  in  his  own  behalf.88 

§  326.  Staying  proceedings. 

Where  proceedings  taken  to  revoke  a  liquor  tax  certificate 
for  the  falsity  of  material  statements  contained  in  the  application 
therefor  have  resulted  in  an  order  of  revocation  and  the  same 
has  been  entered  and  served,  a  stay  of  proceedings  pending 
an  appeal  from  the  order  will  not  be  granted.89     And   a  pro- 

84.  State  v.  Lichta,   130  Mo.  App.  Mandamus    will    not    issue    to 

284,   109  S.  \V.   825.  compel  the  revocation  of  a  void 

Disqualification   of  member  of  license. — State  v.  Ludington,  33  Wis. 

board. — A  member  of  a  board  which  107. 

lias  the  power  to  revoke  licenses  has  In  Pennsylvania  it  has  been  de- 
been  held  to  be  disqualified  from  sit-  cided  that  where  proof  is  made  to  the 
ting  as  a  member  of  such  board  in  in-  court  that  the  party  holding  the  li- 
vestigating  a  matter  and  revoking  a  cense  has  violated  any  of  the  laws 
license  where  such  member  was  in-  relating  to  the  sale  of  liquor  the  stat- 
strumenlal  in  procuring  evidence  ute  is  mandatory  upon  the  judge  to 
against  the  licensee.  State  v.  Brad-  revoke  the  license  he  having  no  dis- 
ish,  95  Wis.  -205,  70  N.  W.  \~1.  37  cretion  in  the  matter.  Genova'a  Li- 
L.  R.  A.  289.  cense.  3  Pa.  Dist.  Kep.  722. 

ss.  State  v.  Lamos,  26  Me.  258.  s~-  Matter  of  Cullinan,  39  Misc.  R. 

86.  State  v.  Johnson,  37  Neb.  362,  (N.  Y. )    ^'^.  7!)  N.  Y.  Supp.  840. 

55  N.  W.  874;  Swan  v.  Wilderson,  10  88.  Cherry    v.    Commonwealth,    78 

Okla.    547,    62     Pac.     422;     State    v.  Va.   375. 

Kellogg,  05  Wis.  672,  70  X.  W.   300.  89.  Matter  of  Washburn.   32   Misc. 


382  REVOCATION,    SURRENDER    AND    REBATE.    [§§   327,328 

ceeding  to  revoke  a  certificate  for  unlawful  sales  will  not  be  stayed 
because  of  the  pendency,  and  until  the  decision,  of  an  action  upon 
a  bond  given  by  the  holder  of  the  certificate,  although  the  viola- 
tions alleged  in  each  case  are  substantially  the  same,  and  this 
because  the  two  proceedings  are  distinct  and  the  relief  contem- 
plated is  not  the  same  in  each.90  And  a  stay  should  not  be 
granted  pending  an  appeal  from  an  order  refusing  a  temporary 
injunction  against  a  board  in  such  proceedings.91 

§  327.  Not  entitled  to  trial  by  jury. 

The  constitutional  provision  securing  the  right  of  trial  by  jury 
is  not  violated  by  a  statute  providing  for  the  cancellation  of 
licenses  by  an  excise  board  upon  a  finding  that  the  licensee  has 
violated  the  laws.92  The  object  of  such  proceedings  not  being 
punishment  but  the  revocation  of  a  privilege.93 

§  328.  Costs  of  proceeding1. 

The  judge  or  court  is  authorized  under  the  New  York  law  to 
charge  the  county  treasurer  with  the  costs  of  a  proceeding  insti- 
tuted by  citizens  to  revoke  a  license,  he  being  a  party  to  the  pro- 
ceedings.94 But  it  is  not  proper  where  costs  are  awarded  against 
a  county  treasurer  in  a  proceeding  by  citizens  to  revoke  a  license  to 
direct  the  payment  of  the  casts  out  of  the  excise  moneys.95  In 
Wisconsin  it  has  been  decided  that  the  common  council  in  revoking 
a  license  represents  the  city,  and  where  it  has  acted  in  good  faith 
though  under  a  mistake,  as  to  its  powers,  the  cost  in  a  pro- 
ceeding to  review  its   action  may  be    adjudged   to  be   paid   by 

R.    (N.  Y.)    303,  66  N.  Y.  Supp.  732,  man,   46  App.   Div.    (N.  Y.)    387,   61 

holding   the   court    has   no   power   to  N.  Y.  Supp.  884. 

grant  a  stay.  93«  Matter  of  Lyman,  .59  App.  Div. 

90-  Matter  of  Lyman,   32  Misc.  R.  (N.   Y.)    217,    69   N.   Y.    Supp.    309 

(N.  Y.)   621,  67  N.  Y.  Supp.  502.  Cherry  v.  Commonwealth,  78  Va.  375 

91.  McLellan  v.  Mayor,  99  Wis.  *>4.  Matter  of  Seymour,  47  App 
544,  75  N.  W.  308.  Div.   (N.  Y.)   320,  62  N.  Y.  Supp.  25 

92.  People  v.  Commissioners  of  Po-  95.  Matter  of  Seymour,  47  App 
lice,  59  N.  Y.  92.     See  Matter  of  Ly-  Div.   (N.  Y.)   320,  62  N.  Y.  Supp.  25 


§   :V2U]  REVOCATION,    SURRENDEB    AND    REBATE.  :;-:; 

the  city.90  And  in  a  recenl  case  in  this  Btate  in  which  on  man- 
damus to  compel  the  re-vocation  of  a  liquor  license  it  appeared, 
among  other  things,  thai  the  I!''1  use  period  had  expired  lx-fore 
the  cause  was  heard  on  appeal  from  a  judgment,  entered  during 
the  life  of  the  lic<  nsee,  <  rroneously  denying  the  writ  it  was  held 
that  the  relator  was  entitled  to  a  reversal  of  the  judgment  with 
costs  and  to  have  judgment  for  costs  in  the  trial  court.97 

§  329.  Reviewing  action — certiorari. 

Where  the  proceedings  in  revoking  a  license  are  alleged  to  be 
illegal  the  remedy  is  by  common  law  certiorari  to  bring  them  up 
for  review  and  not  by  a  proceeding  in  equity  to  declare  the  revo- 
cation void  and  to  enjoin  the  police  officials  who  threaten  to  air  si 
the  licensee  for  selling  without  a  license.98  The  pendency  of  pro- 
ceedings on  certiorari  to  review  the  revocation  by  a  village  board 
of  a  liquor  license,  does  not  operate  as  a  bar  to  prosecution  for 
sales  made  during  that  time  which  would  have  been  justified  by 
the  license  had  it  not  been  revoked."  When  it  is  sought  to  review 
the  action  of  a  village  council  in  canceling  a  liquor  license,  the 
writ  must  be  directed  to  the  village  council,  and  not  to  the  presi- 
dent and  recorder  of  the  village.1 


96.  Common  Council  of  Oshkosh  board  revoking  a  license.  Common- 
v.  stale,  59  Wis.  425,  18  X.  W.  324.  wealth  v.  Campbell,  12S  Ky.  252,  L07 
So.  State,  59  Wis.  425,  18  N.  W.  324.  S.  W.  797. 

97.  Stale  ex  rel  Conlin  v.  City  of  An  appeal  from  an  order  dis- 
Wausau,  137  Wis.  311,  118  X.  W.  missing  a  writ  of  certiorari  to  re- 
Sio.  view  the  action  of  ;i   city  council   in 

08.  Gaertner   v.   Fond   du   Lac.    34  revoking  a   liquor  license  will  be 

Wis.  497.  missed  where  prior  to  the  hearinj 

Certiorari    will    lie    to    review  licei                  spired  by  lapse  of  time 

the   action   of   a   county   court    in  Bince   there  is  no   longer   any   contro- 

revoking  a  license  in   Missouri  where  versy.      Holppa    v.    City    Council    of 

it  acts  in  excess  of  its  jurisdiction  or  Aberdeen,  -'it  Wash.  554,  76  Pac.  7m. 

without  jurisdiction.    State  v.  Lichta,  '•"*•  Neuman  v.  State.  76  Wis.  112, 

130  Mo.  App.  284,  100  S.  W.  45  N.  W.  30. 

City   entitled   to   notice   of   ap-  '•  State  v.  Village  Council.    (Minn. 

peal  by  licensee  from  order  of  local  1909),    120   X.   W.   894. 


3S4        REVOCATION,  SURRENDER  AND  REBATE.     [§  330 

§  330.  Right  to  rebate — no  statute. 

In  the  absence  of  a  statute  authorizing  it  a  licensee  is  not  en- 
titled to  a  rebate  for  the  unexpired  term.  Such  a  right  is  depend- 
ant upon  a  statute  and  where  there  is  no  statute  the  licensee  must 
be  held  as  taking  his  license  subject  to  such  laws  as  prevail.2  So 
where  a  license  is  revoked  on  the  ground  that  certain  of  the  re- 
quirements preliminary  to  the  granting  of  it  were  not  complied 
with  by  the  applicant  and  the  statute  contains  no  procision  as  to  a 
recovery  of  the  license  fee  or  a  proportionate  part  thereof  in  such 
a  case  the  applicant  is  not  entitled  to  recover  any  part  of  it.3  And 
where  a  liquor  license  is  revoked  and  cancelled  by  the  state  board 
of  license  commissioners  because  of  illegal  sales,  the  licensee  is  not 
entitled  to  a  repayment  of  the  fee  pro  tanto  for  the  unexpired 
term  although  he  may  have  been  found  not  guilty  of  the  offense 
upon  a  trial  by  jury,  there  being  no  provision  in  the  statute 
therefor.4  Again  where  city  authorities  had  received  the  license 
fee  and  issued  a  license  to  an  applicant  and  subsequently  during 
the  term  of  the  license  a  state  law  was  passed  raising  the  license 
fee  and  when  the  law  went  into  effect  the  licensee  without  any 
interference  or  direction  from  the  municipal  authorities  ceased  to 
engage  in  the  sale  of  liquor  and  before  the  term  expired  applied 
to  such  authorities  for  a  return  of  the  proportionate  fee  for  the 
rest  of  the  term  and  the  application  was  not  acted  upon  during 
the  term  of  the  license  by  the  officials  then  in  office  but  their  suc- 

2.  Alexander  v.  State,  77  Ark.  204,  clared  that  unless  a  license  is  abso- 
91  S.  W.  181;  McGinnis  v.  Medway,  lately  void  at  its  inception  it  is  valid 
17ii  Mass.  07,  57  N.  E.  210;  Toman  v.  until  revoked,  and  the  licensee  takes 
West  field,  70  N.  J.  L.  610,  57  Atl.  125.  his     chances     about     its     revocation, 

Effect   of   stipulation   tliat  re-  whether  he  be  at  fault  or  not,  and  he 

vocation      illegal. — A      stipulation  must   be   assumed   to   have   consented 

that  the  order  of  revocation  of  a  li-  to  stand  in  the  case  of  a  revocation 

cense  was  made   illegally  cannot   au-  where  the  statute  leaves  him,  as  re- 

thorize  the  court  to  entertain  a  suit  spects  his  right  to  recover  a  whole  or 

to  recover  the  license  fee.     Toman  v.  a  part  of  the  license  fee. 

Westfield,  70  N.  J.  L.  G10,  57  Atl.  125.  4.  Parrent  v.  Little,  72  N.  H.  5G6, 

3.  McGinnia  v.  Medway,  176  Mass.  58  Atl.  510. 
67,   57   N.   E.   210,   wherein  it   is   de- 


§§   331,332]   REVOCATION,    SURRENDER    AND    RKI'.ATK.  385 

cessors  resolved  to  refund  the  money  it  was  held  that  a  petition 
by  citizens  and  taxpayers  to  enjoin  such  repayment,  which  alleged 
these  facts  was  not  open  to  general  demurrer  as  the  money  paid 
for  the  license  had  passed  into  the  ownership  of  the  city,  beyond 
any  means  of  redemption  and  the  succeding  municipal  authorities 
had  no  discretion  or  power  to  dispose  of  public  funds  in  the  man- 
ner attempted.5 

§  331.  Right  to  rebate — where  statute. 

In  some  states  provision  is  made  by  statute  for  a  rebate  where 
the  license  is  surrendered  or  is  revoked  under  certain  conditions. 
A  statute  providing  that  upon  the  surrender  of  a  license  a  reason- 
able allowance  shall  be  made  for  the  unexpired  term  means  that 
a  right  to  sell  liquor  by  virtue  of  the  license  must  exist  at  the  time 
of  its  surrender  and  one  whose  license  has  been  revoked  before 
its  surrender  is  not  entitled  to  such  allowance.6  In  Nebraska  the 
rule  is  that  where  a  liquor  license  has  been  issued  and  is  there- 
after cancelled  without  fault  of  the  licensee  he  is  entitled  to  a 
repayment  pro  tanto  of  the  sum  paid  for  the  unexpired  time.7 

§  332.  Surrender — right  to  rebate — New  York. 

The  right  to  a  rebate  in  New  York  is  construed  as  resting  upon 
a  contract  between  the  licensee  and  the  state.8  The  right  to  the 
rebate  is  a  qualified  one  which  is  subject  to  a  compliance  with 
the  conditions  prescribed  in  the  statute.9  Under  the  Liquor  Tax 
Law  the  conditions  imposed  thereby  upon  the  right  to  a  rebate  for 

5.  City  of  Fitzgerald  v.  Witehard,  where  license  money   was  paid  to  a 
130  Ga.  552,  61  S.  E.  -227.  village  treasurer  and  lie  paid  it  over 

6.  City  of  Louisville  v.  Cain    (Ky.  to  the  school  district,  on  cancellation 
C.  A.  1900),  110   S.  W.  763.  of  the  license  thai  the  licensee  might 

Sufficiency  of  petition  in  an  ae-  maintain  an  action  against  the  school 

tion    to    recover    back    the    unearned  district    for  its  repayment. 

portion  of  a  license  fee.     Allsman  v.  8.  People  v.  Clement,  134  App.  DJv. 

Oklahoma  City,  (Okla.  1008),  95  Pac.       (N.  Y.)  462  . 

468.  »•  Matter  of  Lyman,  59  App.  Div. 

7.  School  District  v.  Thompson.  51  f  X.  Y.)    217,  69  X.  Y.  Supp.  300. 
Neb.    857,    71    N.    W.    728,    holding 


386  REVOCATION,    SURRENDER    AND    REBATE.  [§   332 

the  unexpired  term  of  a  liquor  tax  certificate  are  conditions  pre- 
cedent and  the  property  right  therein  does  not  attach  if  there  is 
an  arrest  or  indictment  or  other  prosecution  provided  for  in  the 
statute  pending  at  the  time  of  the  surrender  or  within  thirty  days 
thereof.10  "  To  entitle  the  holder  to  the  rebate  there  are  certain 
conditions  precedent,  the  fulfilment  of  which  must  be  completed 
at  the  time  of  the  surrender,  and  being  conditions  precedent 
their  fulfilment  must  be  alleged  and  the  burden  of  establish- 
ing them  is  upon  the  certificate  holder.  These  conditions  are 
as  follows:  First,  there  must  be  no  complaint,  prosecution  or 
action  pending  on  account  of  a  violation  of  the  Liquor  Tax 
Law;  second,  the  person  surrendering  must  not  have  violated 
any  provision  of  the  Liquor  Tax  Law  during  the  excise  year 
for  which  the  certificate  was  issued;  third,  the  certificate  must 
be  surrendered  before  arrest  or  indictment  for  a  violation  of 
the  Liquor  Tax  Law;  fourth,  the  person  surrendering  must  have 
ceased  to  traffic  in  liquors  during  the  term  for  which  the  tax  was 
paid."  n  The  right  of  a  licensee  to  the  rebate  depends  upon 
whether  there  has  been  a  violation  of  the  law  by  him  and  not  upon 
the  fact  that  there  has  been  a  conviction  for  a  violation.12  And 
where  the  forfeiture  of  the  rebate  allowed  after  the  voluntary 
surrender  by  the  holder  of  a  certificate  under  the  New  York 
Liquor  Tax  Law,  must  rest  upon  "  any  other  reason  "  than  the 
grounds  specifically  stated  in  the  statute,  it  should  appear  in  the 
statute  .itself,  or  in  some  other  statute,  what  is  meant  by  such 
phrase  and  should  not  be  left  to  the  accuser  to  devise  it  or  for  the 
court  to  spell  it  out  in  penal  cases,  from  reasons  of  public  policy.13 

10.  People  v.  Cullinan,  168  N.  Y.  12.  People  v.  Clement,  134  App. 
258,  HI  N.  E.  243.  Div.  (N.  Y.)  402,  holding  it  not  neces- 

11.  People  ex  rel.  Ferdinand  Mun-  sary  to  show  a  previous  conviction  it 
ich  Brewery  v.  Clement,  117  App.  Div.  being  sufficient  to  show  a  violation 
(N.    Y.    539,    102    N.    Y.    Supp.    779.  according  to  the  rules  governing  the 

Per   Clarke,   J.,   quoted    in    People   v.       trial  of  civil  actions. 

Clement,     134    App.     Div.     (N.     Y.)  13.  Matter    of    Lyman,    163   N.   Y. 

462.  563,  57  N.  E.  745. 


§§  33.3,334]  REVOCATION,    SI  EtRENDEB    AND    REBATE.  387 

§  333.  Surrender — right  to  rebate— New  York. 

Under  the  Liquor  Tax  Law  of  ls'.tti  in  New  Vork  prosecutions 
pending  at  the  time  of  the  issuance  of  the  certificate  and  which 
are  pending  a1  the  time  of  the  surrender  thereof,  or  within  thirty 
davs  thereafter,  apply  with  equal  force  and  have  the  same  effect 
upon  the  right  to  a  rebate  as  violations  committed  after  the  cer- 
tificate lias  been  issued,14  and  this  rule  was  not  changed  by  the 
amendment  of  1903. 15  So  where  a  liquor  tax  certificate  was 
issued  to  one  who  at  the  time  of  issuance  was  under  indictment 
for  violating  the  Liquor  Tax  Law  while  bartender  of  the  holder 
of  another  certificate,  and  therafter  he  was  convicted  of  the  crime 
charged,  neither  he  nor  his  assignee  is  entitled  to  a  rebate  on 
offering  the  certificate  for  cancellation.16  But  an  order  of  dis- 
charge by  a  city  magistrate  of  the  city  of  New  York,  reciting  a 
determination  that  there  is  no  sufficient  cause  to  believe  the 
accused  person  guilty  of  a  violation  of  the  Liquor  Tax  Law  is  held 
to  be  a  dismissal  of  the  proceedings  on  the  merits  within  the  mean- 
ing of  the  provision  of  such  law  as  to  payment  of  a  rebate  where 
a  certificate  is  surrendered.17 

§  334.  Procedure  to  obtain  rebate — New  York. 

One  who  has  surrendered  his  liquor  tax  certificate,   and  has 

14.  People  v.   Cullinan,   108   X.   Y.  cme    who    has    been    convicted    of    a 

258,  61  N.  E.  243 ;  Matter  of  Seitz,  32  violation    of    the    act    can    lawfully 

Misc.  R.   (N.  Y.)    108,  65  N.  Y.  Supp.  traffic   in   liquors    within   thai    period. 

4(!2.  People  ex  rel.  Zeltner  Brewing  Co.  v. 

IB.  The  amendment  to  §  25  of  the  Clement,  128  App.  Div.   (N.  Y.)   530, 

Liquor  Tax  Law.  made  by  chapter  480  112  N.  Y.  Supp.  051 . 

of  the  Laws   1903,  did   not   so  change  16.  People  ex  rel.  Zeltner  Brewing 

the  law  that  the  right  to  rebate  is  for-  Co.   v.   Clement,    128   App.   Div.    (N. 

feited  only  when  the  offense  is  com-  Y.)   530.  112  \.  Y  Supp.  951. 

mitted  during  the  life  of  the  certifi-  it.  People  ex  rel  David  Stevenson 

cate,  and  there  can  be  no  rebate  if  Brewing    Co.    v.     Lyman,     69     App. 

when    the   certificate    is    surrendered,  Div.    (N.   Y.)    400.    74   X.   Y.    Supp. 

three  years  have  not   elapsed   since  a  1104.     See  also  People  ex  rel.  Joseph 

conviction  of  the  original  holder   for  Fa  licit    Brewing    Co.    v.    Lyman,    53 

a  violation  of  the  Liquor  Tax    Law,  App.    Div.     (N.    Y.)     470.    i\r,    X.    Y. 

for  by  virtue  of  *  23,  as  amended  by  Supp.   10(12. 
chapter  G80  of  the  Laws  of  1005  no 


388  REVOCATION.    SURRENDER    AND    REBATE.  [J   335 

taken  the  receipt  of  the  county  treasurer  which  entitles  him  to  a 
rebate  can  only  pursue  the  method  pointed  out  in  the  statute  to 
enforce  payment  of  the  same.18  And  the  making  of  duplicate 
receipts  by  the  county  treasurer  and  the  transmission  of  one  of 
them  together  with  the  tax  certificate  and  the  petition  for  cancel- 
lation thereof  to  the  commissioner  of  excise  is  a  prerequisite  to  the 
making  by  him  of  the  orders  for  the  payment  of  the  rebate.19 
But  where  the  question  of  the  validity  of  a  liquor  tax  certificate 
is  brought  into  court  the  county  treasurer  has  no  authority  to 
accept  its  surrender  and  refund  the  pro  rata  amount  of  the  tax 
for  the  unexpired  period.20  And  the  execution  of  the  duplicate 
receipts  by  the  officer  who  executed  the  certificate,  upon  its  sur- 
render is  not  an  adjudication  that  the  allegations  contained  in 
the  petition  by  the  licensee  in  connection  with  the  surrender  of 
the  license  are  true  so  as  to  bind  the  state  commissioner  of  excise 
upon  whom  the  duty  of  paying  the  rebate  devolves.21 

§  335.  Right  to  rebate — mandamus — New  York. 

The  issuance  of  an  order  by  the  state  commissioner  of  excise 
for  the  payment  of  a  rebate  on  a  liquor  tax  certificate  may  be 
compelled  by  mandamus,  where  in  a  proper  case  he  refuses  to 
issue  such  an  order.22  So  a  licensee,  or  his  assignee,  seeking  to 
compel  the  payment  of  a  rebate  after  the  surrender  of  his  certifi- 
cate is  entitled  to  an  alternative  writ  of  mandamus  where  his 


18.  Ging  v.  Sherry,  32  App.  Div.  papers  is  entitled  to  surrender  it,  he 
(N.  Y.)   354,  52  N.  Y.  Supp.  1003.  issues  the  duplicate  receipts  and  sends 

19.  People  ex  rel.  Ochs  v.  Lyman,  the  certificate  to  the  Commissioner  of 
25  Misc.  R.  (N.  Y. )  217,  55  N.  Y.  Excise,  without  any  knowledge  of  the 
Supp.  70.  rights  of  an  assignee.     Albany  Brew- 

20.  Matter  of  Johnson,  IS  Misc.  R.  ing  Co.  v.  Barckley,  42  App.  Div. 
(N.  Y.)   498,  42  N.  Y.  Supp.  1074.  (N.  Y.)    335,  59  N.  Y.  Supp.  65. 

A     county     treasurer     is     not  21.  People  ex  rel.  David  Stevenson 

guilty   of   conversion  where,  upon  Brewing  Co.  v.  Lyman,  07  App.  Div. 

delivery  of  the  tax  certificate  by  the  (N.  Y.)   440,  73  N.  Y.  Supp.  987. 

receiver  of  the  one  to  whom  it  was  23»  Knapp  v.  Scanlin,  36  Misc.  R. 

issued  and  who  on  the  force  of  the  (N.  Y.)   756,  74  N.  Y.  Supp.  458. 


g  336]     REVOCATION,  SURRENDER  AND  REBATE.        389 

petition  alleges  that,  although  there  was  a  single  conviction  of 
one  of  his  employees,  there  was  no  violation  of  law  by  him,  for  a 
question  of  fact  is  raised.-"  And  where  an  alternative  writ  of 
mandamus  is  addressed  to  the  state  commissioner  of  excise  for  the 
payment  of  a  rebate  called  for  by  duplicate  receipts  and  a  return 
is  served  by  him  denying  the  allegations  therein  the  burden  is  on 
the  one,  procuring  such  writ,  to  show  that  the  allegations  are 
true.24 

§  336.  Right  of  assignee  to  rebate— receiver. 

Under  the  New  York  law  the  right  of  an  assignee  of  a  liquor 
tax  certificate  to  recover  the  rebate  may  be  lost  not  only  by  acts  of 
his  but  also  by  those  of  his  assignor.2  In  order  for  an  assignee  of 
a  liquor  tax  certificate  to  recover  the  rebate  provided  for  by  statute 
upon  the  surrender  of  the  certificate  he  must  show  that  there  has 
been  no  violation  of  the  Liquor  Tax  Law  during  the  excise  year 
for  which  the  certificate  was  issued.26  So  if  a  liquor  tax  certifi- 
cate, issued  to  a  firm  and  assigned  as  collateral  security,  is  sur- 
rendered by  the  assignee,  under  a  power  given  by  the  assignment 
and  a  rebate  receipt  is  issued  to  him  the  arrest,  within  thirty 
days  thereafter,  of  one  of  the  firm  for  a  violation  of  the  Liquor 
Tax  Law  suspends  the  right  of  the  assignee  to  the  rebate.27  And 
where  the  one  to  whom  a  tax  certificate  has  been  issued  could  not 

23.  People  v.  Clement.  134  App.  tifioate  assigned  to  another  may  be 
Div.  (N.  Y)    162.  cancelled  for  persisted    violations  of 

24.  People  ex  rel.  David  Stevenson  the  law  by  the  one  to  whom  it  was 
Brewing  Co.  v.  Lyman,  H7  App.  Div.  issued  and  who  continued  to  eon- 
(N.  Y.)    466,   7:!   N.   Y.   Supp.   987.  duct   the   business    after   the   assign- 

26.  People    v.    Clement,    128    App.  ment.    Matter  of  Bradley,  22  Misc.  R. 

Div.    (N.  Y.)    539,    112   \.   Y.   Supp.  (N.  Y.)  301,  49  N.  Y.  Supp.  1100. 
951;  People  ex  rel.  A.  Hupfel's  Sons  -'<:.  People  ex  rel  A.  Hupfel's  Sons 

v.   Cullinan,   95    App.   Div.    (N.    Y.I  v.   Cullinan,   95    App.    Div.    (N.   Y.I 

598,    88    N.    Y.    Supp.    1022;    People  598,  88  N.  Y.  Supp.  1022. 
ex  rel.  David  Stevenson   Brewing  Co.  27.  People    v.    Lyman,    156    N.    Y. 

v.    Lyman,    69    App.    Div.     (X.    Y.)  407,  50  N.  E.  1112,  affg  27  App.  Div. 

406,  7  1  X.  V.  Supp.  1104.  527,  50  X.  Y.   Supp.  407.     See  note, 

Where    assignor    continues    to  32    X.    Y.    Ami.    Rev.    Ed.    158,    as    to 

conduct  business. — A  liquor  tax  eer-  cancellation   and   rebate. 


390  REVOCATION,    SURRENDER    AND    REBATE.  [§   337 

under  the  law  in  New  York  if  he  retained  the  certificate  in  his 
own  name  enforce  the  payment  of  the  rebate  he  cannot  by  a  volun- 
tary transfer  of  such  certificate  without  consideration  confer  any 
greater  right  upon  the  assignee  to  such  rebate  than  he  himself 
possessed,  and  consent  given  by  a  special  deputy  commissioner  to 
such  transfer  does  not  condone  an  offense  for  which  the  certificate 
could  be  revoked  so  as  to  operate  either  to  his  benefit  or  that  of 
his  successor.28  And  where  pending  an  application  for  a  sur- 
render of  a  liquor  tax  certificate  and  the  payment  of  the  rebate  a 
judgment  is  recovered  by  a  creditor  who  procures  the  appointment 
of  a  receiver  an  order  will  not  be  granted  to  the  latter  directing 
the  payment  by  the  state  commissioner  of  excise  of  the  rebate  as 
the  moneys  are  not  held  by  the  latter,  orders  being  merely  issued 
by  him  upon  the  proper  officers  for  its  payment.29 

§  337.  Right  of  licensee  as  affected  by  acts  of  employee — revoca- 
tion— rebate. 
The  violation  of  the  law  which  will  forfeit  the  right  to  a  rebate 
does  not  mean  a  personal  violation  by  the  certificate  holder  but 
also  includes  a  violation  by  an  agent  of  his  in  the  course  of  his 
duty.30  "While  the  system  of  regulation  of  intoxicating  liquors 
grants  the  licensee  the  privilege  of  conducting  his  business  through 
an  agent  it  also  imposes  on  the  licensee  the  affirmative  duty  to  see 
to  it  that  every  regulation  is  obeyed  by  his  agents  as  well  as  him- 
self, and  such  a  licensee  is  answerable  for  the  acts  of  his  bar- 
keepers  though  he  is  absent  from  his  place  of  business  and  had 
instructed  such  agents  not  to  make  forbidden  sales.31  So  a  sale 
by  an  agent  of  the  licensee  in  violation  of  the  law  though  made 
contrary  to  the  orders  given  to  him  by  the  licensee  who  was  con- 

28.  Matter    of    Cullinan,    87    App.  SO.  People    v.    Clement,    134    App. 
Div.   (N.  Y.)   47.  S3  N.  V.  Supp.  1025.  Div.    (N.  Y.)   402. 

29.  Knapp  v.  Scanlin,  36  Misc.  R.  »*•  State  v.  Wausau,  137  Wis.  311, 
(N.  Y.)   750,  74  N.  Y.  Supp.  458.  US  X.  W.  810.    See  People  v.  Meyers, 

95  N.  Y.  223. 


S   338]  REVOCATION',    SURRENDER    AND    REBATE.  :;:n 

tiinially  about  the  premises  ls  presumed  to  have  beer  known  to  the 
Latter  and  he  will  be  chargeable  with  knowledge  thereof  in  pro 
ceedings  to  revoke  the  license.32  And  the  righl  to  a  rebate  on  a 
liquor  lax  certificate  is  Los1  by  a  violation  of  the  law  by  an  em- 
ployee of  the  certificate  holder  though  he  may  not  have  been  presenl 
when  such  violation  took  place.83  And  where  a  bar-keeper  sells 
liquors  to  minors  it  is  a  violation  of  law  for  which  a  license  may  be 
revoked  though  the  licensee  may  have  instructed  the  bar-keeper  aol 
to  make  such  sales.34  And  where  violations  of  the  Liquor  Tax 
Law  occur  in  a  place  ostensibly  conducted  under  an  outstanding 
liquor  tax  certificate  and  the  person  in  charge  is  using  it  with  the 
consent  of  the  holder  thereof,  the  latter  is  held  liable  under  the 
statute  for  violations  so  far  as  affects  the  question  of  cancellation 
of  the  certificate.35 

§  338.  Effect  of  surrender  before  violation. 

It  is  no  defense  to  an  application  for  the  revocation  of  a  liquor 
tax  certificate  that  the  certificate  had  been  surrendered  prior  to 
the  discovery  of  the  violation  and  the  commencement  of  the  pro- 
ceedings to  revoke.  Such  proceedings  may  be  instituted  at  any 
time  during  the  excise  year  for  which  such  certificate  was  issued.36 
So  the  fact  that  a  violation  of  the  Liquor  Tax  Law  by  the  one  to 

82.  Matter  of  Lyman.  2!)  Misc.  K.  his  employment,  sold  intoxicating  liq- 

(X.    V.i    525,    til    X.    Y.    Supp.    946.  uora  to  a  minor,  the  saloon  keeper  is 

See  Moyer's   License,  20   Pa.  Co.  Ct.  guilty  of  a   violation   of  the   statute 

603.  and  it  becomes  the  duty  of  the  licens- 

33.  People  ex  rel.  Duncan  v.  Clem-  ing   hoard  to   revoke   his    1  i- 

ent,  63  }llse.  R.    (X.  V.  i    369,  116  X.  ••r-  Matter  of  Cullinan,  :;'.>  Mi--.  R. 

Y.   Sun...   1098.  (X-  V.)    641,  so  X.  Y.  Supp.   186. 

:;«.  Stat^'  v.  Beloit,  7  1  Wis.  267,  42  36.  Matter  of  Clement,  62  W 
X.  W.  110.    See  also  State  v.  Wausau,  (X.  Y.)  -",12.  lid  X.  Y.       Supp.  1070. 
137  Wis.  311,  ns  \.  w.  810,  holding  Per   Newburger,   J.,   citing   People   v. 
that  where  a  bar  keeper  in  the  absence  Cullinan.  95  Ap]     Div.   (X".  Y.) 
and  without  the  knowledge  of  the  sa-  ss  x.  Y.  Supp.  1022.     See  also  Clem- 
loon   keeper,   and   in   violation   of   in-  eni   v.  Yis.-nsi.  63  Misc.  (N.  Y.>  514, 
structions    noi    to   sell   to  any   minor,  lis   X\   Y.   Supp.   613. 
Buch  instructions  being  a  condition  of 


3!n>        REVOCATION,  SURRENDER  AND  REBATE.     [§  333 

whom  a  certificate  has  been  issued  has  not  been  discovered  at  the 
time  of  the  surrender  by  an  assignee  thereof  or  that  no  proceeding 
had  been  instituted  at  that  time  does  not  entitle  the  assignee  to 
a  rebate  where  there  is  in  fact  shown  to  have  been  a  violation.37 

37.  People  ex  rel.  A.  Hupfel's  Sons,  Lyman,  69  App.  Div.  (N.  Y.)  406,  74 

v.   Cullinan,   95    App.    Div.    (N.    Y.)  N.  Y.  Supp.  1104;  Matter  of  Lyman, 

598,    88    N.    Y.    Supp.    1022;    People  26  Misc.   R.    (N.   Y.)    300,  56  N.   Y. 

David     Stevenson     Brewing     Co.     v.  Supp.  1020. 


§  339]  boxds.  393 


CHAPTER  XV. 

BONDS. 

Section  339.  Where  bond  required  by  law. 

340.  Construction  of — extent  of   liability. 

341.  Effect  of  repeal  of  law. 

342.  Approval  and  filing  of. 

343.  Power  of  board  in  approving— as  to  filing — mandamus. 

344.  Bond  need  not  strictly  conform  to  statute. 

345.  Recitals — misrecitals. 

346.  Effect  of  blanks. 

347.  As  to  the  sureties. 

348.  Amount  of  bond. 

349.  Condition  against  violating  statute. 

350.  Same  subject — conviction  for. 

351.  Condition  as  to  gambling. 

352.  Sales  to  minors. 

353.  Sales  on  Sunday. 

354.  In  case  of  licenses  to  hotels. 

355.  Payment  of  fines  and  costs. 

356.  Acts  by  agent  of  licensee. 

357.  False  statements  in  application. 

358.  Surety  not  liable  after  surrender  of  certificate. 

359.  Conditions  not  required  by  law. 

360.  Liability  for  judgment. 

361.  Bond  only  binding  as  to  place  named. 

362.  Release  of  liability — discharge  of  sureties — collateral  agreement. 

363.  Actions  upon  generally. 

364.  Parties  to  actions  on. 

365.  Pleading. 

366.  Evidence  in  action  on. 

367.  Right  to  quest  ion  validity  of  bond. 

§  339.  Where  bond  required  by  law. 

Ordinarily  it  is  provided  by  statute  that  an  applicant  for  a  license 

must  give  a  bond  upon  procuring  the  same  conditioned  that  he 


394 


BONDS. 


[§  339 


will  conduct  the  business  in  accordance  with  the  laws  in  force  in 
regard  thereto.  Compliance  with  such  a  statute  is  essential  to  the 
validity  of  the  license.1  So  one  taking  out  a  license  to  engage  in 
the  traffic  of  intoxicating  liquors  may  be  required  by  statute  to 
give  a  bond  with  proper  securities  that  he  will  keep  an  orderly 
house.2  And  a  statute  requiring  the  giving  of  a  bond  as  a  condi- 
tion precedent  to  the  issuance  of  a  license  imposes  upon  the  per- 
son giving  it,  the  licensee  presenting  it,  the  responsibility  of  know- 
ing that  it  complies  in  all  essential  particulars  with  the  law  and 
where  it  is  insufficient,  as  where  one  of  the  bondsmen  is  disquali- 
fied by  law  from  acting  as  such,  the  licensee  can  not  relieve  him- 
self from  liability  by  the  fact  that  the  officials  charged  with  the 
duty  of  determining  whether  the  bond  was  sufficient,  accepted  and 
approved  it.3  But  one  who  makes  sales  under  a  license  which  has 
not  been  annulled  or  cancelled  does  not  by  the  fact  that  such  sales 
are  made  between  the  time  he  receives  notice  to  file  a  new  bond 
and  the  time  that  such  new  bond  is  filed  commit  a  violation  of 
law  the  statute  not  making  such  sales  a  penal  offense.4  And 
though  in  some  states  a  bond  is  required  of  a  druggist,5  yet  ordi- 
narily a  statute  of  this  character  is  not  considered  as  applicable 
to  druggists.6 


l«  Indiana. — Crutz  v.  State,  4  Ind. 
385. 

Maine.— State  v.  Shaw,  32  Me.  570. 

Massachusetts. — Howes  v.  Max- 
well,  157  Mass.  333,  32  N.  E.  152. 

Michigan, — Wolcott  v.  Judge  of  Su- 
perior Court,  112  Mich.  311,  70  N.  W. 
831. 

Minnesota. — stale  ex  rel.  Xicolin, 
v.  Scheiner,  86  Minn.  253,  90  N.  W. 
401. 

Missouri. — State  v.  Bennett,  102 
Mo.   App.  247,  73  S.  W.   737. 

Texas. — Ex  parte  Bell,  24  Tex. 
App.  428,  6  S.  W.  107. 

Wisconsin. — State  r.  Fisher,  33 
Wis.  154. 


Bond  must  be  filed  before  liquor 
tax  can  be  received  and  receipt  given. 
Attorney-General  v.  Huebner,  91 
Mich.  436,  51  N.  W.  1072. 

s.  Ex  parte  Bell,  24  Tex.  App.  428, 
6  S.  W.  197. 

3.  Wolcott  v.  Judge  of  Superior 
Court,  112  Mich.  311,  70  N.  W.  831. 

4.  Holland  v.  State,  51  Tex.  Cr. 
143,   101   S.  W.   1003. 

r>.  People  v.  Utley,  129  Mich.  628, 
89  X.   W.  349. 

6.  Moore  v.  People,  109  111.  499; 
State  v.  Courtney,  73  Iowa  619,  35 
N.  W.  685. 


BONDS. 


395 


§  340] 

§  340.  Construction  of — extent  of  liability. 

A  liquor  dealer's  bond  is  to  be  construed  like  any  other  contract 
that  is  so  as  to  discover  and  give  effect  to  the  intention  of  the 

parties,  so  that  performance  of  the  contract  may  be  enforced  in 
accordance  with  the  sense  in  which  it  was  naturally  understood  al 
the  time  it  was  made7  The  liability  of  the  sureties  attach  upon 
the  acceptance  of  the  bond,8  and  it  is  no  answer  to  an  action  for 
the  breach  of  the  conditions  that  the  defendant  is  liable  to  a 
criminal  prosecution  for  the  acts  constituting  such  breach.9  The 
liability  of  sureties  will  not  be  extended  beyond  the  terms  of  the 
instrument.  Thus  where  sureties  have  not  obligated  themselves 
to  pay  damages  recovered  against  the  licensee  they  are  not  liable 
for  damages  resulting  from  the  sale  of  liquors  by  him.10  And 
where  a  bond  is  conditioned  only  to  pay  all  civil  damages  there 
is  no  liability  on  the  part  of  the  sureties  for  a  penalty  recovered 
against  the  licensee.11     In  Iowa  the  sureties  are  liable  for  the 


7.  Dowait  v.  People,  92  111.  App. 
433,  aff'd  193  111.  264,  61  X.  E.  1059. 

License  to  firm — effect  of  dis- 
solution of. — Where  a  bond  is  given 
in  connection  with  a  license  issued  to 
a  firm,  the  liability  of  the  sureties 
does  not  continue  after  the  dissolution 
of  the  firm  though  the  business  is  con- 
tinued  by  one  of  the  members,  Scahill 
v.  Aetna  [ndemnity  Co.  (Mich.  1909), 
122  N.  \V.  78. 

Bond  takes  effect  from  date  of 
filing. — A  bond  dors  not  cover  acts 
committed    prior    to    it     being    filed. 

Allen  v.  Houck  &  Dieter  Co.  (Tex. 
Civ.  App.  1906),  92  S.  W.  993. 

But  where  a  liquor  dealer's  bond  is 
antedated  it  has  been  held  1"  relate 
back  when  filed  to  its  date  and  to 
cover  the  period  prior  to  the  filing. 
Brockway  v.  Petted,  79  Mich.  620,  45 
\.  \V.  61. 

Defense  of  non-corapliance 
with  law.     Burden   of  proof. — In 


an  action  against  a  surety  upon  a 
bond  conditioned  that  the  principal 
should  pay  all  accounts  for  beers  ami 
liquors  purchased  by  him  of  the  plain- 
tiff it  was  held  that  an  objection  that 
there  was  no  affirmative  proof  by  the 
plaint  ill'  that  it  had  complied  with  an 
act  7-equiring  the  branding  of  barrels 
and  casks  in  which  liquors  are  sold 
was  without  force  and  that  the  bur- 
den of  proof,  if  any  defense  could  have 
been  based  on  the  act.  was  with  the 
defendants.  Phoenix  Brewing  Co.  v. 
Rumbarger,  1^1  Pa.  St.  251,  37  Atl. 
340.  59  Am.  St.  Hep.  HIT. 

8.  Brockway  v.  retted.  T'.i  Mich. 
620,  -r,  X.  W.  61. 

!►.  State  v.  Whitener,  23  Ind.  124. 

10.  rjldrich  v.  Gilmore,  35  Neb,  288, 

.V!    X.   W.    135. 

ii.  Eeadington  v.  Smith,  113  Iowa 
107.  SI  X.  W.  982.  Compare  State  v. 
Miller.  44  W.  Va.  385,  3<>  S.  E.  07. 


396  BONDS.  [||  341,342 

payment  of  the  mulct  tax,  and  cannot  escape  payment  thereof  on 
the  ground  that  by  failure  of  the  principal  to  pay  the  tax  he  is 
no  longer  operating  under  the  law.12 

§  341.  Effect  of  repeal  of  law. 

In  case  of  the  repeal  of  a  liquor  law  subsequent  to  the  execu- 
tion of  a  bond,  the  bond  will  cover  such  provisions  of  the  law 
under  which  it  was  executed  as  are  embraced  in  the  new  law.13 
But  there  is  held  to  be  no  vested  right  in  a  penalty  and  where  a 
bond  was  conditioned  for  the  payment  of  a  penalty  provided  for 
by  a  certain  statute  which  statute  was  repealed,  the  liability  of 
the  sureties  for  the  penalty  was  held  to  cease  upon  such  repeal.14 

§  342.  Approval  and  filing  of. 

Where  both  the  approval  and  filing  of  a  bond  is  required  by 
law  such  a  bond  has  no  force  until  both  approved  and  filed.15  And 
where  the  approval  of  a  bond  by  the  common  council  of  a  city  is 
required  a  bond  cannot  be  enforced  until  approved  by  the  action 
of  the  council  itself  and  the  report  of  a  committee  approving  it 
will  not  be  sufficient  unless  such  report  is  accepted  by  the  coun- 
cil.16 But  though  a  statute  may  require  the  written  approval  of 
the  mayor  to  any  ordinance  or  resolution,  yet  where  the  approval 
of  a  liquor  bond  does  not  require  any  ordinance  or  resolution  of 
the  common  council,  the  approval  of  the  mayor  is  not  necessary.17 

12.  O'Brien  County  v.  Mahon,  126  opinion  in  this  case  and  granted  a 
Iowa  530,  102  N.  W.  446.  writ  of  error  which  was  subsequently 

13.  Gulliekson  v.  Gjorud,  89  Mich.  dismissed  because  the  supreme  court 
8.  50  N.  W.  751.  was  without   jurisdiction.     See  Long 

14.  Thompson  v.  Bassett,  5  Ind.  v.  Green,  100  Tex.  510,  101  S.  W. 
535.  786. 

So  in  Texas  it  has  been  decided  that  15.  Hillman  v.  Gallagher  (Tex.  Civ. 

a  right  to  a  penalty  expired  upon  the  App.    1909),    120    S.    W.    505,    citing 

adoption  of  local  option  and  did  not  Allen  v.  Houck    (Tex.  Civ.  App.),  92 

revive    in    case   local    option    was    re-  S.  W.  996. 

pealed.      Long    v.    Green     (Tex.    Civ.  As  to  sufficiency  of  approval  of 

App.     1906),     95     S.     W.     79.       The  bond  by  a  municipal  corporation.    See 

supreme  court  did  not  agree  with  the  Prather  v.  People,  85  111.  36. 


8  ::»••:] 


BONDS. 


397 


And  though  the  approval  of  a  bond  should  be  indorsed  thereon 
yet  it  has  been  decided  thai  a  city  suing  on  a  Liquor  bond  pay- 
able to  the  city  may  show  by  parol  evidence  that  the  bond  was  in 

fact  delivered  to  and  approved  by  the  council  as  required  though 
such  approval  was  not  endorsed  thereon.18  So  where  the  bond  of 
a  liquor  dealer  has  been  filed  with  the  clerk  and  retained  by  him, 
and  the  principal  in  the  bond  then  engages  in  the  sale  of  liquors, 
the  sureties  cannot  plead  as  a  defense  to  the  bond  that  no  formal 
approval  was  endorsed  thereon.19 

§  343.  Power  of  board  in  approving — as  to  filing — mandamus. 

Where  a  board  acts  judicially  in  approving  or  disapproving  a 
bond  the  members  cannot  be  made  liable  in  a  civil  action  for  a 
refusal  to  approve,  though  they  may  be  erroneous.20  And  the 
good  faith  of  a  board  in  approving  a  liquor  bond  will  not  be  re- 
viewed by  the  courts  under  a  claim  that  there  was  an  insufficient 
investigation  as  to  the  pecuniary   responsibility   of  the   sureties 


16.  Garrison  v.  Steele,  46  Mich. 
98,  8  N.  W.  696. 

17.  O'Halloran  v.  Mayor,  etc.,  of 
City  of  Jackson.  107  Mich.  138,  64 
N.  W.  1046. 

18.  Decherd  v.  Drewry,  64  Ark. 
599.  44  S.  W.  351. 

19.  Thomas  v.  Hinkley,  19  Neb.  324, 
27  N.  W.  231. 

so.  Amperse  v.  Winslow,  75  Mich. 
234,  42  N.  W.  823. 

In  one  of  the  earlier  cases  in 
Michipan  it  was  decided  that  the  pro- 
vision of  an  act  authorizing  the  re- 
jection of  a  bond  by  the  approving 
board  if  the  principal  is  known  to 
them  "to  be  a  person  whose  character 
and  habits  would  render  him  or  her 
an  unfit  person  to  conduct  the  busi- 
ness of  selling  liquor"  was  uncon- 
stitutional. Robison  v.  Miner,  68 
Mich.  549,  37  X.  W.  21.  The  eourl 
said:  "  Where  licenses  arc  granted  to 


limited  numbers  of  people,  it  is  some- 
times provided  that  applicants  shall 
present  evidences  of  character  in  the 
place  where  they  live;  but  it  would 
be  anomalous  to  allow  any  one  to 
be  disqualified  from  business  and 
branded  with  disgrace,  both  of  which 
are  really  heavy  punishments,  on  the 
mere  will  of  anybody.  *  *  *  If  the 
statute  had  fixed  the  rule,  there 
would  be  means  of  protecting  parties 
against  caprice  and  condemnation 
unheard.  But  whim  the  same  persons 
are  to  be  judges  of  the  proper  causes 
of  rejection,  as  well  as  of  the  fitness 
of  persons  under  such  causes,  the 
law    subjects    every    one    <<>    the     I 

will  of  his  neighbors,  and   gives  him 
no  rights  whatever.     Xo  man's  ri 
can    be   submitted,    under    a    constitu- 
tional   governmenl    to    the    discretion 
Of    anybody."      Per    Campbell,    J. 


39S  B0NDS-  [§  343 

and  a  consequent  error  in  judgment  on  the  part  of  the  hoard.21 
And  where  a  board  having  the  power  to  approve  or  disapprove 
the  bond  of  a  liquor  dealer  refuses  to  approve  the  same  and  it 
does  not  appear  that  their  action  was  arbitrary  or  capricious  or 
in  bad  faith,  approval  will  not  be  compelled  by  mandamus.22  So 
where  a  majority  of  the  board  vested  with  the  power  to  approve 
bonds  refused  its  approval  of  a  bond  on  the  ground  that  one  of  the 
sureties  was  not  financially  qualified  it  was  held  that  approval 
would  not  be  compelled  bj  mandamus  it  not  appearing  that  the 
action  of  the  board  was  arbitrary  or  not  in  good  faith.23  But  the 
board  cannot  act  arbitrarily  in  refusing  to  approve  and  accept 
bond  and  if  they  do  may  be  compelled  by  mandamus  to  act.24  So 
a  village  council  having  in  good  faith,  without  passing  on  the 
sufficiency  of  sureties,  refused  to  accept  a  liquor  bond,  mandamus 
should  merely  require  the  council  to  examine  into  the  sufficiency 
of  the  sureties  and  to  approve  the  bond  if  found  sufficient.25  And 
power  conferred  upon  a  common  council  to  suppress  saloons  must 
be  exercised  by  ordinance  and  where  the  only  ordinance  in  force 
is  one  fixing  the  amount  of  bonds,  the  council  cannot  arbitrarily 
reject  a  bond  which  complies  with  the  terms  of  such  ordinance  on 
the  ground  that  it  is  done  in  the  exercise  of  the  power  to  sup- 
press.26 So  where  village  authorities  in  refusing  to  approve  a 
bond  have  acted  arbitrarily  and  in  bad  faith  mandamus  will  be 
granted  to  compel  them  to  approve  such  bond,  it  appearing  that  it 
conforms  to  law  and  that  the  sureties  are  financially  able  to 
qualify.27     Again  where  it  was  required  by  statute  that  a  bond 

21.  Brio's  v.  McKinley,  131  Mich.  24.  McLeod  v.  Scott,  21  Oreg.  94, 
154,  91    N.  W.   156.  2GPac.  1001,  29  Pac.  1. 

22.  Parker  v.  Portland,  54  Mich.  25.  Hawkins  v.  Common  Council 
308,  20  N.  W.  55;  Nordstrom's  Peti-  of  Village  of  Litchfield,  120  Mich. 
lion    (Commonwealth  v.  Wilson),  127  390.    79   N.   W.   570. 

pa    st    542    is  Atl.  001.  26.  Hawkins  v.  Common  Council  of 

23.  Divine  v.  Lakeview,  121  Mich.  Village  of  Litchfield,  120  Mich.  390, 
433    80  X    W.  100:  Post  v.  Township      79  N.  W.  570. 

Board  of  Rparta,  G4  Mich.  597,  31  X.  27.  Farr    v.    Anderson,    135    Mich. 

w     535  485,  98  N.  W.  6. 


§   344]  BONDS.  399 

should  be  filed  with  the  municipal  authorities  on  <>r  before  a  cer- 
tain date  and  it  was  so  filed  bul  the  approval  was  postponed  until 
a  few  days  after  the  date  specified  and  on  the  date  to  which  con- 
sideration and  approval  of  the  bond  was  postponed  the  authori- 
ties refused  to  approve  it  because  of  an  ordinance  which  took 
effect  on  that  date,  it  was  held  that  the  action  of  the  authorities 
in  refusing  to  act  upon  such  bond  could  not  be  justified  by  the 
ordinance.28  And  where  a  bond  has  been  approved  there  is  no 
discretion  as  to  acceptance  and  filing  of  the  same.29 

§  344.  Bond  need  not  strickly  conform  to  statute. 

A  bond  which  complies  in  form  and  substance  with  the  statute 
is  sufficient  though  there  is  not  a  strict  compliance  therewith.30 
So  a  hond  though  it  may  not  he  conditioned  according  to  the  stat- 
ute yet  if  it  clearly  shows  its  purpose  and  is  substantially  a  com- 
pliance therewith  it  is  sufficient.31  And  sureties  upon  a  bond 
cannot  escape  liability  upon  the  ground  that  the  bond  docs  not 
conform  to  the  exact  language  of  the  statute  where  they  presented 
it  for  acceptance  after  execution  and  it  was  accepted  and  the 
license  issued  to  one  who  has  received  all  the  benefits  there- 
under.82 Again  a  bond  may  be  good  as  a  common  law  obligation 
though  not  in  conformity  to  the  statute.33 


28.  Warner  v.   Lawrence,   02   Mich.  same  effect  as  if  "conditioned  in   all 

251,  28  N.  W.  si  l.  respects  as  required  by  law:  Provided 

20.  Brockway   v.    retted,   70   Mich.  such  bond  had  the  effect  in  such  pro- 

620,  45  X.   W.   01.  eeeding  which  a  hond  payable  and  con- 

30.  Crawley  v.  Commonwealth,  123  diiioned  as  prescribed  by  law  would 

Pa.  St.  275.   Hi  Atl.  410.  have  had." 

By  statute  in  force  in  BOme  states  81.   Edgar    v.    State,    40    Tex.    Civ. 

a  bond  though  it  does  not  contain  all  App.  171.  102  S.  W.  430. 
the    conditions    required     by     law     is  32.  Lyman  v.  Thucker,  20  Misc.  It 

nevertheless     valid     ami     enforceable.        I X.    V.)     594,    56    X.    Y.    Supp.    7t',7. 

State  v.  Depeder,  05  Miss.  20.   3   So.  See   also   State   v.   Wharton,    20   Tex. 

80,   so   holding   where   a    statute    pro-  Civ.  App.   202,  03  S.  \Y.   915, 
vided  that  a  bond  executed  in  "any  83.  O'Brien  County  v.  Mahon,  126 

legal    proceeding"    should    have    the  Iowa  539,   L02   X.   YV.  446. 


400  BONDS.  [§§  345,340 

§  345.  Recitals — misrecitals. 

The  recitals  in  a  bond  are  binding,  and  estop  one  to  deny  them.34 
So  a  recital  in  a  bond  that  a  license  was  duly  issued  estops  the 
sureties  from  denying  such  fact.35  But  where  it  appears  that 
words  in  a  bond  were  inserted  by  mistake  through  a  mere  clerical 
error  they  may  be  treated  as  surplusage  and  the  bond  construed 
as  though  they  were  not  in  it.36  Such  a  misrecital  does  not  avoid 
the  bond  where  there  is  no  difficulty  in  assertaining  from  the 
whole  instrument  the  intention  of  the  parties.37  So  the  bond 
stands  as  an  indemnity  to  the  state  generally  and  a  surety  will  not 
be  allowed  to  defeat  a  recovery  thereon  by  the  fact  that  the  bond 
recites  the  wrong  number  on  the  street  as  the  place  where  the  busi- 
ness is  to  be  carried  on,  it  appearing  that  the  mistake  was  that  of 
the  principal  for  whom  the  surety  stands.38 

§  346.  Effect  of  blanks. 

A  bond  may  be  valid  and  enforceable  though  as  delivered  it 
contains  blanks.  So  where  in  a  liquor  dealer's  bond  the  penalty 
has  by  mistake  been  left  blank  it  will  be  held  valid  at  the  lowest 
statutory  penalty  when  the  sureties  have  justified  at  that  sum  in 
accordance  with  the  statute  requiring  the  justification  to  conform 
to  the  penalty.39  And  though  a  bond  contains  blanks  which  are 
not  filled  at  the  time  of  evecution  but  which  should  be  filled,  as  is 
known  by  the  obligors,  before  delivery  and  they  are  so  filled  and 
it  nowhere  appears  that  they  were  filled  contrary  to  the  expec- 
tations of  the  obligors,  the  bond  will  not  be  thereby  vitiated.40 

34.  Anderson      v.      Commonwealth,  Co.,  41  Misc.  R.  (N.  Y.)   119,  83  N.  Y. 
105  Va.  533,  54  E.  E.  305.  Supp.  909,  so  holding  where  the  busi- 

35.  Moniteau  County  v.  Bechtle,  123  ness  was  at  257  Main  Street  and  the 
Mo.  App.  673,   100  S.  W.   1107.  bond  recited  it  as  being  at  256  Main 

36.  Dowiah  v.  People,  92  111.  App.  Street  which  was  a  vacant  lot. 

433,  aff'd  193  111.  264,  61  K  E.  1059.  39.  Garrison  v.  Steele,  96  Mich.  98, 

37.  Howes    v.   Mavwell,    157    Mass.       8  N.  W.  696. 

333,  32  X.  E.  152.  40.  Greene   County   v.    Wilhite,   29 

38.  Cullinan  v.  Fidelity  &  Casualty      Mo.  App.  459. 


§§  347,348]  BONDS.  H.l 

§  347.  As  to  the  sureties. 

As  to  who  may  be  a  surety  on  such  a  bond  is  generally  provided 
for  by  the  terms  of  the  statute  under  which  it  is  given.11  A  stat- 
ute providing  that  a  person  shall  not  become  surety  on  more  than 
two  liquor  bonds  is  constitutional.42  But  though  a  person  signs 
two  or  more  bonds  in  contravention  of  the  statute  yet  this  will 
not  affect  his  liability  on  cither  of  them,  as  such  a  provision  in  a 
statute  will,  in  the  absence  of  a  declaration  that  one  of  the  bonda 
will  bo  void,  be  construed  as  in  the  nature  of  a  direction  merely 
to  the  boards  which  approve  them.43 

§  348.  Amount  of  bond. 

The  bond  should  name  a  sum  therein  as  a  penalty  to  render  it 
enforceable.44  But  though  the  penalty  of  a  bond  may  be  in 
excess  of  the  amount  provided  for  in  the  statute  for  a  single  bond 
yet  if  not  in  excess  of  the  aggregate  amount  of  the  bonds  required, 
but  is  equal  thereto,  the  bond  is  not  void  on  that  ground.45     The 


41.  Matthews  v.  People  ex  rel. 
Streeter,  149  111.  399,  42  N.  E.  8C4, 
rev'g  59  111.  App.  146,  holding  that  a 
surety  need  under  the  statute,  only 
be  a  freeholder  of  the  county,  it  not 
being  necessary  that  he  be  a  resident 
thereof. 

42.  Wolcott  v.  Judge  of  Superior 
Court,  112  Mich.  311,  70  N.  W.  831. 

43.  Thomas  v.  Hinkley,  19  Neb. 
324,  27  N.  W.  231. 

44.  Louisville  v.  Cain  (Ky.  C.  A. 
1909),  119  s.  \Y.  7C,:},  holding  that  a 
statement  in  an  affidavit  by  sureties 
as  to  their  solvency  made  preparatory 
to  signing  the  bond  that  they  had 
property  of  a  certain  value  is  not 
carried  by  inference  into  the  bond  and 
there  being  no  provision  of  law  as  to 
the  penal  sum  to  be  inserted  the  sure- 
ties are  under  no  liability. 

Under  the  New  York  Liquor 
Tax  Law,   §   18  as  amended  in   1897 


the  state  commissioner  of  excise  was 
authorized  to  maintain  an  action  upon 
the  bond  either  for  the  recovery  of 
the  entire  penalty  for  any  breach  of 
any  condition  of  the  bond  or  for  the 
amount  of  any  penalty  or  penalties 
incurred  or  imposed  for  a  violation  of 
the  law.  Lyman  v.  Perlmutter,  166 
N.  Y.  410,  60  N.  E.  21,  aff'g  49  App. 
Div.  630,  62  N.  Y.  Supp.  866. 

And  in  this  state  it  has  been  de- 
cided that  the  surety  upon  a  bond 
given  is  not  limited  as  to  the  amount 
of  recovery  against  him  to  the  civil  or 
criminal  penalties  prescribed  in  the 
act  for  a  violation  of  its  provisions. 
Lyman  v.  Shenandoah  s.ui.i  1  Club, 
39  App.  Div.  (N.  Y.)  4.',!).  57  NT.  Y. 
Supp.  372,  cited  in  Lyman  v.  Gram- 
ercy  Club,  39  App.  Div.  (N\  Y.)  661, 
57   X.  Y.  Supp.  376. 

i~.  Greene   County    v.    Wilhite,   29 
Mo.  App.  459. 


402 


BONDS. 


[§  349 


amount  fixed  in  the  bond  is  in  the  nature  of  a  penalty  and  not 
liquidated  damages  where  the  statute  is  silent  upon  the  subject.46 

§  349.  Condition  against  violating  statute. 

It  is  not  necessary  in  the  bond  to  embody  the  act  for  a  violation 
of  which  the  bond  is  conditioned  against  it  being  held  sufficient 
if  the  law  to  which  reference  is  made  can  be  clearly  identified.47 
So  where  a  bond  provides  that  a  license  has  been  granted  pursuant 
"  to  the  laws  "  of  the  state  and  is  conditioned  that  the  licensee 
"  shall  not  violate  any  of  the  provisions  of  said  laws  "  it  is  held  to 
be  sufficient  as  by  such  reference  the  condition  will  be  construed 
as  referring  to  the  laws  relating  to  intoxicating  liquors  under 
which  the  license  was  granted.48  And  where  a  bond  is  condi- 
tioned for  the  observance  of  "  all  laws  relating  to  intoxicating 
liquors"  the  keeping  open  of  the  place  on  Sunday  is  a  breach  of 
the  bond  although  such  act  is  forbidden  by  a  statute  relating  to 
Sunday  and  not  by  that  relating  to  intoxicating  liquors.49     A  con- 


The  fact  that  a  bond  is  given  for 
a  sura  in  excess  of  that  required  by 
the  statute  does  not  affect  its  valid- 
ity. Barry  County  v.  Sherman,  (Mo. 
App.   1910),  125  S.  W.   781. 

46.  State  v.  Larson,  83  Minn.  124, 
86  N.  W.  3.  See  State  v.  Vinson,  5 
Tex.  Civ.  App.  315,  23  S.  W.  807. 

47.  Plucknett  v.  Tippey,  45  Neb. 
342,  63  N.  W.  845. 

48.  Providence  v.  Bligh,  10  R.  I. 
208.  See  Tripp  v.  Norton,  10  R.  I. 
125. 

u>.  Quintard  v.  Corcoran,  50  Conn. 
34. 

Sale  to  intoxicated  person 
where  the  bond  is  merely  conditioned 
to  pay  the  penalty  in  ease  of  a  sale 
to  an  intoxicated  person,  the  question 
of  care  exercised  by  the  seller  is 
immaterial  if  in  fact  a  sale  was 
made  to  such  a  person.  State  v. 
Dubruiel   (N.  H.  1909),  74  Atl.  1048, 


wherein  the  Court  said:  "The  de- 
fendant's contract  with  the  state  evi- 
denced by  his  bond  was  that  in  case, 
in  the  exercise  of  his  license,  liquor 
should  be  sold  to  an  intoxicated  per- 
son, he  would  pay  the  state  the  dam- 
ages thereby  occasioned,  even  if  the 
sales  were  made  by  one  of  his  ser- 
vants without  his  knowledge  and 
against  his  express  command.  State 
v.  Corron,  73  N.  H.  434,  446,  450, 
454,  62  Atl.  1044.  As  the  object  of 
the  bond  is  the  protection  of  the  state 
and  not  the  punishment  of  the  licen- 
see  *  *  *  the  material  question  is 
whether  that  has  been  done  which 
the  bond  stipulated  should  not  be 
done.  Since  good  faith  in  the  defen- 
dant would  not  protect  the  state 
from  loss  the  contract  cannot  be  con- 
strued in  accordance  with  the  re- 
quested instruction  without  destroy- 
ing  the   purpose   of  the   bond.      The 


§   350]  BONDS.  403 

dition  to  keep  all  the  provisions  of  the  code  is  to  be  construed  as 
meaning  the  code  with  such  amendments  as  were  in  force  when  the 
bond  was  executed.60  Again  where  a  judge  is  authorized  to  take 
a  bond  with  surety  from  a  person  conditioned  not  to  violate  the 
revenue  laws  of  the  state  if  upon  a  hearing  after  an  arrest  for 
violation  of  such  law  he  has  probable  cause  to  suspect  him  guilty 
of  such  violation  the  requirement  as  to  "  probable  cause  to  sus- 
pect "  is  sufficiently  answered  by  the  indictment  of  the  defendant, 
his  appearance  and  the  giving  of  the  required  bond.'1 

§  350.  Same  subject — conviction  for. 

Where  a  statute  provides  merely  that  a  bond  will  be  for- 
feited for  a  violation  of  the  statute  and  does  not  make  a  convic- 
tion a  pre-requisite  to  forfeiture  a  conviction  is  unnecessary.52 
Where  conviction  is  essential  a  person  will  be  regarded  as  "  con- 
victed "  of  a  crime  when  he  has  been  found  guilty  by  a  jury  or 
has  pleaded  guilty  although  there  has  been  no  sentence  or  judg- 
ment by  the  court.53  And  though  a  sentence  in  a  liquor  prosecu- 
tion may  be  illegal  yet  if  no  appeal  has  been  taken  from  the  con- 
nection it  will  operate  to  forfeit  the  bond.54  Again  a  recovery 
upon  a  bond  given  by  a  liquor  tax  certificate  holder  maj  be  had 
though  such  holder  was  convicted   on  the   testimony   of   special 

absence  of  express  terms  limiting  the  whether  Delphanier  was  sober  or  not 

defendant's  covenent  to  ordinary  care  at    the   time   of   the   sale    then    your 

in   the   exercise   of    the    privilege   con-  verdict  should   be    for   the  defendant." 

ferred  by  the  license,  and  the  general  50.  OTlinn    v.    State,    66    Miss.    7, 

purpose    of    the   bond    establish    that  5  g0    390. 

no  such  limitation  was  intended.  *  *  B1>  An(1(ir,(1I1     v      Commonwealth, 

*   As  the  terms  of  the  contract  were  1Q5  v&    -.,.,    -(   g    ,,    ..,,- 

that  no  liquor  should  be  sold  snch  a 

',      ,  .       ,,        ,  •»-•  State  v.   Pierce.   2(.   Ixans.    ,,,. 

person,   and    the  breach    alleged   was 

1  ,  ,.  See  also  Granger  v.  Hayden,  1<    H.  I. 

snch  a  sale,  the  instruction  was  prop-  ' 

, ,,      ,,       -  '    T         179,  20  All.  833,  citing  Coggeshall  v. 

erly   refused."      Per    Parsons,   C.   J. 

'  ,    .      ,,  .  Tollitt.  1.)  K.  T.   ins,  1  Atl.  41. J. 

The   court    refused    in    this    case   to 
instruct    the    jury    as    follow-     "If  53.  Quintard  v.  Knoedler,  53  Conn. 

the  defendant    did   all   that    a    reason-       *85,  2  Atl.  752,  55  Am.  Hep.  149. 
ably    prudent    man    should   do   under  54.  Jacobs  v.   Eolgenson,  70  Conn, 

the      circumstances      to      determine       68,  38  Atl.  014. 


404  BONDS.  [§§  351,352 

excise  agents  who  lawfully  entered  the  place  to  investigate  and 
subsequently  during  prohibited  hours,  bought  liquors  in  the  same 
manner  as  ordinary  customers  without  practicing  cocercion,  mis- 
representation, fraud  or  deceit.  And  though  such  agents  acted 
beyond  their  instructions  such  purchases  are  to  be  regarded  as 
their  own  acts  and  the  state  is  not  estopped  from  recovery.55 

§  351.  Condition  as  to  gambling. 

Under  the  laws  in  force  in  some  states  a  breach  of  the  bond 
occurs  where  gambling  is  permitted  upon  the  licensed  premises. 
Where  a  bond  contains  a  condition  not  to  permit  gambling  upon 
the  premises  the  surety  is  not  relieved  from  liability  for  a  breach 
of  such  condition  by  the  fact  that  there  is  a  subsequent  provision 
in  the  bond  that  it  is  to  cover  every  violation  of  the  liquor  law,  which 
law  does  not  prohibit  gambling,  such  provisions  being  regarded 
as  no  qualification  of  the  previous  condition.56  And  where  in 
an  action  on  a  bond  a  breach  of  the  conditions  was  alleged  in 
that  gambling  was  permitted  in  a  room  attached  to  the  dramshop 
it  was  decided  that  the  jury  should  be  instructed  that  in  order  to 
hold  the  defendants  liable  on  the  bond  they  must  find  that  the 
dramshop  keeper  had  control  of  the  room  where  the  gambling 
was  carried  on  and  that  such  control  might  be  shown  by  a  collu- 
sive renting  or  a  retention  of  control  by  a  participation  in  the 
business.57  Under  a  condition  of  this  character  the  maintenance 
of  a  nickel  slot  machine  is  a  breach  thereof.58 

§  352.  Sales  to  minors. 

In  many  states  a  bond  either  by  an  express  condition  therein 

55.  Lyman  v.  Oussani,  33  Misc.  R.  58.  Lyman  v.  Brucker,  26  Misc.  R. 

(N.  Y.)   400,  68  N.  Y.  Supp.  450.  (N.  Y.)  594,  56  N.  Y.  Supp.  767. 

56-  Lyman  v.  Kurtz,  166  N.  Y.  274,  A    "  nickle    slot   machine"   when    a 

59  N.  E.  003,  aff'cf  48  App.  Div.  633,  contrivance  by  which  it  is  determined 

62  N.  Y.  Supp.   1141.  who,  as  between  the  player  and  pro- 

r»7.  McPherson  v.  Simmons,  63  Ark.  prietor,    is    the    winner    or    loser    of 

593,  40  S.  W.  78.     See  Horan  v.  Chief  money  hazarded,  is  a  gambling  device. 

Justice,  27  Tex.  226.  Lyman  v.  Kurtz,  166  N.  Y.  274,  59 


§  352]  BONDS.  405 

or  by  tho  general  condition  is  violated  by  a  sale  to  a  minor.69     So 

a  licensee  by  a  sale  to  a  minor,  which  sale  is  forbidden  by  stat- 
ute under  penalty,  violates  a  condition  in  the  bond  that  he  will 
not  allow  the  place  to  become  disorderly.60  And  where  a  bond  is 
conditioned  against  permitting  a  person  under  the  age  of  twenty- 
one  years  to  enter  and  remain  upon  the  premises  one  who  is  under 
such  an  age  is  within  the  meaning  of  the  condition  though  his 
father  has  "  emancipated  "  him.61  And  if  within  the  meaning  of 
the  statute  a  minor  is  permitted  to  enter  and  remain  upon  the 
premises  of  the  licensee  where  the  business  is  carried  on  the  good 
faith  of  the  latter  in  permitting  him  to  do  so  does  not  prevent 
it  from  being  a  breach  of  the  bond.62  Again  where  it  is  a  violation 
of  a  bond  to  permit  a  minor  to  enter  and  remain  upon  the  premises 
it  is  immaterial  in  an  action  on  such  bond  that  it  is  alleged  that 
a  minor  was  allowed  to  enter  and  remain  upon  the  premises  as 
a  bartender  and  that  the  proof  tended  to  show  that  he  acted  as 
porter  as  the  allegation  as  to  the  capacity  in  which  such  minor 
acted  is  unnecessary  and  may  be  treated  as  surplusage.63  But 
where  the  statute  provides  that  a  liquor  dealer  shall  not  permit  a 
minor  to  "enter  and  remain"  upon  the  premises  it  has  been  held 
error  in  an  action  on  a  bond  for  a  violation  of  the  statute  to  in- 
struct the  jury  that  a  breach  may  be  established  by  evidence  show- 
ing that  the  minor  was  permitted  either  to  enter  or  remain,  as  it 
was  necessary  that  both  acts  should  concur  to  establish  a  breach.64 

N.  E.  903,  affg  48  App.  Div.  G33,  62  v.    deer,    10   Tex    Civ.    App.   252,    30 

N.  Y.  Supp.  1141.  S.  W.   1108. 

59.  Evidence  of  minor  being  a  OO.  People  ex  rel.  Meakin  v.   Eck- 

gambler   and   of   ages   of   others   by  man,  <i:>  Hun.   (N.  Y.),  '2i>!»,  IS  N.  Y. 

way    of   comparison    inadmissible    in  Supp.   654. 

action   for  breach   of  condition   as  to  <>t.  Onx  v.  Thompson,  90  Tex.  468, 

selling  to  minors.     Paynor  v.   IIolz-  73  S.  W.  950. 

graf.  35  Tex.  Civ.  App.  233,  70  S.  W.  <*,2.  c\>x  v.  Thompson,  00  Tex.  468, 

820.  7.1  S.  W.  950. 

An   entry  in   the  family  Bible  63.  State    v.    Curtis.    8    Tex.    Civ. 

is  n.if   admissible  to  Bhow  tin-  age  of  App.  506,  28  S.  W.  134. 

a    child    where    both    parents    are    in  6-4.  Minter   v.    State,    33   Tex.    Civ. 

court  and  testify  as  to  his  age.    Smith  App.  182,  76  S.  W.  312. 


406  BONDS.  [§§  353,354 

And  a  bond  conditioned  that  the  licensee  will  not  permit  minors 
to  enter  and  remain  upon  the  premises  is  not  violated  where  the 
entry  of  the  minor  was  not  for  the  purpose  of  buying  or  drinking 
liquor  and  his  stay  was  only  for  a  moment  or  two  and  for  the 
purpose  of  aiding  the  licensee,  as  in  such  a  case  the  law  should  be 
construed  according  to  its  spirit  and  meaning  and  not  literally.65 

§  353.  Sales  on  Sunday. 

A  sale  on  Sunday  which  is  not  authorized  by  the  license  gen- 
erally operates  as  a  breach  of  the  bond.  So  the  condition  of  a  bond 
is  violated  by  an  unlawful  sale  on  Sunday  though  made  to  a 
police  officer  who  was  sent  to  ascertain  if  the  licensee  was  violating 
his  bond  by  sales  on  Sunday  and  to  buy  of  him  if  he  was,  it  not 
appearing  that  the  licensee  was  induced  to  sell  by  anything  such 
officer  did  or  said  but  rather  was  willing  and  desirous  to  sell.68 
But  in  a  recent  case  in  Kentucky  in  which  a  bond  was  conditioned 
that  the  licensee  should  not  keep  his  saloon  open  on  Sunday  and 
the  evidence  showed  that  during  the  absence  of  the  licensee  his 
clerk  made  some  unlawful  sales  of  liquor  on  a  single  Sunday  but 
that  it  had  always  been  closed  an  Sundays  prior  thereto  the  court 
held  that  no  case  was  made  out  and  that  a  peremptory  instruction 
should  have  been  sustained.07 

§  354.  In  case  of  licenses  to  hotels. 

Licenses  to  hotels  to  sell  liquor  are  often  issued  under  statues 
which  contain  exceptions  and  conditions  not  applicable  to  the 
retail  traffic  in  general.  Thus  such  a  license  frequently  permits  a 
hotel  keeper  to  sell  liquor  to  guests  in  connection  with  their  meals. 
But  in  this  connection  it  is  held  that  in  an  action  upon  a  bond 

Permission   to  a   minor  to  enter   a  65.  Douthit  v.   State,  98  Tex.  344, 

place  is  not  a  breach  of  a  condition  83  S.  W.  795. 

that  the  seller  will  not  permit  a  minor  66.  Tripp  v.  Planigan,  10  R.  I.  128. 

to  enter  and  remain  upon  the  prem-  67.  Jones   v.   Paducah    (Ky.   C.   A. 

ises.    Smith  v.  Geer,  10  Tox.  Civ.  App.  1909),  115  S.  W.  801. 
252,  30  S.  W.  1108. 


§  355]  BONDS.  407 

given  to  procure  a  hotel  liquor  certificate  a  prima  facie  case  U 

established  l>v  showing  thai  there  was  a  sale  of  liquor  on  Sunday 
by  the  holder  of  the  certificate  and  if  the  defendanl  claims  that 
the  sale  was  within  the  exception  contained  in  the  Liquor  ] 
Law  as  to  sales  to  guests  the  burden  restes  upon  him  to  3how  such 
fact.08  Under  the  New  York  Tax  Law  in  order  for  a  hotel 
keeper  to  procure  a  license  to  sell  liquors  in  connection  with  the 
conduct  of  the  hotel  there  are  certain  requirements  as  to  the  rooms 
compliance  with  which  is  essential.  Under  this  law  it  is  decided 
that  where  the  rooms  do  not  comply  with  the  requirements  of  the 
law  in  regard  thereto  it  is  no  defense  to  an  action  on  the  bond 
that  the  hotelkeeper  was  told  by  a  special  excise  agent  after  the 
certificate  was  issued  that  the  law  was  sufficiently  complied  with.69 
Again  in  the  case  of  a  license  to  sell  liquors  in  connection  with  a 
hotel  a  condition  in  the  bond  that  the  licensee  will  not  permit  the 
"  premises  to  become  disorderly  "  applies  not  to  the  bar  alone 
but  to  the  entire  hotel  and  if  the  building,  even  with  the  excep- 
tion of  the  bar,  is  used  for  immoral  purposes  there  is  a  breach  of 
the  condition.70 

§  355.  Payment  of  fines  and  costs. 

Where  a  bond  is  conditioned  that  the  obligor  will  pay  all  fines 
and  costs  that  may  be  assessed  against  him  for  violations  of  the 
liquor  laws  it  is  held  that  he  is  not  liable  thereon  for  the  pay- 
ment of  tines  and  costs  assessed  against  his  bartender  for  an  un- 
lawful sale  made  by  him  without  the  principal's  knowledge  or 
consent.71  And  where  a  bond  is  conditioned  for  the  payment  of 
a  fine  and  costs  and  the  licensee  is  prosecuted  for  a  violation  of 
the  act  and  a  fine  and  costs  imposed  which  lie  immediately  ]>av<. 

68.  Cullinan  v.  O'Connor,  100  App.  to.  Cullman  v.  Fidelity  &  Casualty 

Div.    (K.   Y.)    142,    01    N.   Y.    Supp.  Co.,   84    App.    Div.    (N.    V.)    292,    82 

628.  X.   V.   Supp.   695. 

6».  Cullinan  v.  O'Connor.  100  App.  *1.  State    v.    Leach,    17    Ind.    App. 

Div.    (X.    Y.)    142,   91    X.    Y.    Supp.  174,  40  X.  E.  549. 
628. 


408  BONDS.  [§§  356,357 

it  is  held  that  an  action  will  not  subsequently  lie  on  the  bond 
aeainst  him  and  the  sureties  thereon  for  the  breach  for  the  reason 

a 

that  the  amount  of  loss  to  the  state  has  been  paid  and  satisfied.72 
But  in  a  case  in  Pennsylvania  where  a  licensee  was  sentenced  to 
pay  a  fine  or  undergo  imprisonment,  and  he  served  the  time  of  the 
sentence  in  prison  it  was  held  that  he  and  his  sureties  were  still 
liable  upon  the  bond  for  the  amount  of  the  fine.73 

§  356.  Acts  by  agent  of  licensee. 

An  act  by  on  agent  of  the  licensee  may  be  a  violation  of  a  con- 
dition of  the  bond  as  much  as  if  done  by  the  licensee  he  being 
said  to  be  as  it  were  a  guardian  of  the  law  as  to  the  premises  upon 
which  his  business  is  transacted.74  So  it  is  no  defense  to  an  action 
for  a  breach  of  a  bond  that  the  act  alleged  as  constituting  the 
breach  was  done  by  an  agent  of  the  principal  especially  where  the 
statute  provides  that  any  violation  thereof  by  "  any  agent  or  other 
person  acting  for  such  dram-shop  keeper  "  shall  be  deemed  and 
taken  as  the  act  of  the  latter.75  Thus  a  pharmacist  and  his  surety 
on  the  bond  become  liable  for  the  penalty  prescribed  therein  for 
a  sale  in  violation  of  the  law  under  which  it  was  issued  though 
such  violation  was  committed  by  a  clerk  of  the  pharmacist's  in 
the  later's  absence.76 

§  357.  False  statements  in  application. 

Where  a  tax  certificate  is  void  from  its  inception  because  of 
false  statements  in  the  application  as  to  material  facts  there  is  no 
liability  on  the  part  of  the  sureties ;  as  the  object  of  the  bond  is  to 
protect  the  state  with  reference  to  the  conduct  of  business  under 

72.  Rtate    v.    Estabrook,    20    Kans.  Civ.  App.   171,   102  S.  W.  430. 
739.       See     also     Town     Council     v.  75.  Greene    County   v.    Wilhite,   29 

Harbers,  6  Rich.  L.  (S.  C.)  96.  Mo    App    459 

7^.  Brown    v.    Commonwealth,    114 


7G.  Cullinan    v.   Burkarrl,   03   App. 
iv. 
5.   S'o.   390;   Edgar  v.  State,  46  Tex.       1003. 


Pa.  St.  335,  6  Atl.  152. 

74.  OTlinn    v.    State,    66    Miss.    7,       Div.     (N.    Y.)     31,    86    N.    Y.    Supp. 


§§  358,359]  BONDS.  409 

a  legal  certificate  and  not  againsl   the  fraud  of  the  principal  in 
securing  it.77 

§  358.  Surety  not  liable  after  surrender  of  certificate. 

The  provision  of  the  New  York  Liquor  Tax  Law  which  pro- 
hibits the  return  of  the  rebate  upon  a  surrendered  certificate  has 
no  bearing  upon  the  liability  upon  the  bond,  given  to  procure  such 
certificate.  The  surety  is  obligated  as  to  the  conduct  of  the  prem- 
ises and  violations  of  the  law  during  the  time  the  certificate  is 
held  and  his  liability  terminates  with  the  surrender  of  the  certifi- 
cate. Therefore  an  action  to  recover  the  penalty  of  a  bond  given 
upon  the  procurement  of  a  liquor  tax  certificate  for  a  violation  of 
the  law  after  the  certificate  has  been  surrendered  is  not  maintain- 
able.78 

§  359.  Conditions  not  required  by  law. 

Where  the  bond  is  required  to  be  executed  in  accordance  with 
the  statute  a  surety  cannot  escape  liability  on  the  ground  that  it  is 
defective  in  that  it  contains  conditions  in  addition  to  those  im- 
posed by  the  statute  under  which  it  is  executed,  where  such  bond 
has  been  accepted  and  acted  upon  and  rights  conferred  by  reason 
of  its  delivery.  Such  additional  provisions  will  be  regarded  as 
of  no  effect. 79 

77.  Lyman  v.   Kane,  57   App.  Div.  v.   Schermerhorn.    167    X.    V.    113,   60 

(N.    Y.)    549,    67    N'.    V.    Supp.    UK;.-,,  N.   E.   324.  off:/   53  App.  Div.   32.   r,:, 

citing    Lyman    v.    Schermerhorn,    53  N.   Y.    Supp.   538. 

App.  Div.  (X.  Y.t  32,  c,.-,  X.  Y.  Supp.  78.  Lyman   v.   Cheever,    168   N.   Y. 

538.      See   also    Lyman    v.    Mead,    56  43,  60  X.  E.  L047,  rev'g  52  App.  Div. 

App.    Div.     (N.    Y.)     5*2.    (17    N.    Y.  635,    66    X.    Y.    Supp.    1136    and    dis- 

Supp.  254.  tii),ur'iisliiii'_r     People     v.     Lyman,     156 

A   surety   in   the  absence  of  knowl-  X.  Y.  407,  50  X.  K.   1112. 

edge    is    nut    liable   for    sales   under   a  7f>.  Lyman  v.  Brucker,  26  Misc.  R. 

certificate  given  upon  an  application  (X*.   Y.)    594,   56   X.   Y.   Supp.   767; 

falsely    stating    that    applicant    bad  Walker  v.  Holtzclaw,  57  S.  C.  450.  35 

never*  been   convicted  of  a    felony   as  S.  E.  7r.4:  Meador  v.  Adams,  33  Tex. 

the    surety    dues    imt    guarantee    the  Civ.   App.    167,  76   S.   W.   238;   com- 

truth  of  such  statement.     See  Lyman  pare  Crosby  v.  Snow,  16  Me.  121. 


410  BONDS.  [§§  360,361 

§  360.  Liability  for  judgment. 

In  a  suit  against  the  sureties  to  recover  the  amount  of  a  judg- 
ment against  the  principal  for  damages  they  can  only  show  that 
the  judgment  was  not  rendered  by  a  court  of  competent  juris- 
diction or  that  it  was  used  for  fraud  cr  collusion  and  they  cannot 
retry  the  original  suit  upon  the  merits.80  And  it  has  been  decided 
that  the  surety  is  conclusively  bound  by  the  judgment  in  such 
suit  even  though  he  was  not  a  party  to  it  and  had  no  notice  of  it.81 

§  361.  Bond  only  binding  as  to  place  named. 

Tho  bond  is  only  binding  on  the  sureties  for  a  breach  of  such 
conditions  as  occur  at  the  place  named  in  the  bond  or  in  the  li- 
cense which  the  bond  was  given  to  procure.82  So  in  New  York 
it  is  decided  that  a  bond  given  to  secure  the  observance  of  the 
Liquor  Tax  Law  by  one  to  whom  a  certificate  is  issued  secures 
only  the  observance  of  the  law  on  the  premises  for  which  the 
license  is  issued,  and  there  can  be  no  recovery  against  the  surety 
because  the  principal  violated  the  law  in  other  localities.83  But 
the  liability  on  a  bond  for  violations  of  law  occurring  at  the  place 
for  which  the  license  was  issued  is  not  affected  by  a  temporary 
removal  of  the  business  to  another  place  without  a  transfer  being 
legally  made.84 


80.  Clinton  v.  Laning,  73  Mich.  scribe  the  place  where  the  business 
284,  41  N.  W.  424 ;  compare  Margoley  is  to  be  conducted  it  is  never  - 
v.  Commonwealth,  3  Mich.  (Ky.)  theless  valid,  there  being  nothing  in 
405.  the  statute  requiring  such   a  descrip- 

81.  Mount  Pleasant  v.  Greenlee,  03  tion,  though  it  would  probably  be  bet- 
\V.  Va.  207,  00  S.  E.  601,  citing  ter  that  such  description  should  be 
Brandt  on  Suretyship  &  Guaranty,  inserted.  O'Brien  County  v.  Mahon, 
§  802.  120   Iowa   530,    102  N.   W.  446.     Ex- 

s—  O'Banion    v.    De    Garmo,     121  amine  Douthit  v.  State,  98  Tex.  344, 

Iowa  139,  96  N.  W.  73!).  citing  Carter  83  S.  W.  795. 

v.  Nicol,  116  Iowa  519,  90  N.  W.  352;  S3.  Clement    v.    Smith.     128    App. 

Soffroi  v.   Cobun,   32  Tex.   Civ.  App.  Div.  (N.  Y.)  859.  113  N.  Y.  Supp.  55. 
75.    73   S.   W.   828.  84.  McLeod   V.    State,    33   Tex.   Civ. 

Though  the  bond  does  not  de-  App.  170,  76  S.  W.  216. 


§§362,363]  B0NDS-  in 

§  362.  Release    of    liability — discharge    of    sureties — collateral 
agreement. 
A  release  of  liability  on  a  bond  by  officials  having  no  authority 
to  so  act  is  of  no  effect.86     And  the  sureties  upon  a  bond  are  liable 

for  any  breach  occurring  during  the  period  for  which  it  was 
given  and  cannot  discharge  themselves  from  liability  by  removing 
from  the  corporation  within  which  the  business  is  carried  on  or  by 

a  notice  to  the  principal  from  the  official  with  whom  the  bond  was 
filed  to  file  a  new  bond  and  in  the  meantime  to  discontinue  busi- 
ness.86 Again  a  statute  which  contains  various  provisions  as  to 
bonds  generally  and  which  gives  by  one  of  its  provisions  a  right 
to  a  surety  to  cancel  a  bond  upon  a  certain  notice  does  not  operate 
to  confer  a  right  to  a  surety  upon  a  liquor  dealer's  bond  given 
under  another  statute  to  cancel  his  bond  where  the  former  statute 
contains  an  exception  as  to  bonds  otherwise  specially  provided 
for.87  And  a  surety  cannot  defeat  recovery  upon  a  bond  by  alleg- 
ing an  agreement  with  a  third  person  that  the  latter  should  add  his 
name  thereto  as  principal  in  the  absence  of  any  notice  to  the 
obligee  of  such  alleged  agreement.88 

§  363.  Actions  upon — generally. 

Where  the  statute  under  which  a  bond  is  given  provides  the 
remedy  for  a  recovery  thereon  it  is  held  that  the  specific  remedy  so 
provi<hi  1  must  be  pursued.89     The  right  to  proceed  thereon  is  held 

86.  Revenue  Agent  v.  Cox,  80  Miss.  Williams.    117    Iowa   500,   no   X.   \Y. 

501.  32  So.   117.  819. 

86.  Wright  v.  Treat,  B3  Mich.  110,  s!>-  Commonwealth  v.  Thompson,  2 
47  N.  W.  243.  Cray   (Mass.)   83,  holding  that  where 

87.  Fidelity  &  Deposit  Co.  v.  Jen-  the  statute  provided  that  .scire  facias 
ness,  138  Iowa  725,  116  N.  W.  709.  should   be    issued   an    action   on   con- 

88.  Jacobs  v.  Hogan,  73  Conn.  740,  tract  could  not  be  brought. 

49  Atl.  202.  But  see  Anderson  v.  Commonwealth, 

Oral   promise   of  tie  principal  105    Ya.    533,    54    S.    1".    305,    holding 

in    a    bond    to    repay    the    surety    the  that    the   mere  giving  of  the   right    to 

amount  of  a  judgment  entered  against  proceed  by  si  ir<  facias  on  a  bond  does 

held  not  enforceable.     Gorham  v.  not  exclude  other   remedies  or   forms 


412 


BONDS. 


[§  3G3 


not  to  be  limited  to  the  bringing  of  a  single  action  but  it  is  de- 
cided that  successive  actions  may  be  brought  upon  a  bond  until 
it  is  exhausted  either  by  suits  in  behalf  of  the  state  or  by  parties 
aggrieved  or  by  both.90  And  a  recovery  may  be  had  from  the 
sureties  without  first  exhausting  the  property  of  the  principal.91 
But  where  an  action  has  been  brought  on  a  bond  and  it  has  been 
determined  that  there  can  be  no  recovery,  there  can  be  none 
against  the  dealer  individually.92  The  action  upon  a  bond  is  not 
a  criminal  action  either  in  form  or  substance,93  and  in  New  York 
is  held  to  be  upon  a  contract  obligation  and  not  one  to  recover  a 
penalty  or  forfeiture  imposed  by  statute.94  In  Texas  however  it 
has  been  decided  that  the  liability  is  a  statutory  and  not  a  con- 
tractual one  and  that  the  suit  is  on  the  bond  not  as  the  foundation 
or  evidence  of  the  liability,  but  merely  as  security  for  its  en- 
forcement.95    In  an  ordinary  action  on  the  bond  judgment  may 


of  action  to  enforce  the  collection  of 
its  penalty. 

An  action  of  debt  as  well  as 
scire  facias  may  be  brought  on  a 
liquor  dealer's  bond.  State  v.  Walker, 
56   N.   H.   176. 

The  action  on  a  pharmacist's 
bond  is  on  contract  to  recover 
damages  for  breach  of  its  conditions 
and  the  amount  of  the  damages  are 
fixed  and  liquidated  by  the  agree- 
ment itself.  Clement  v.  Dwight  (N. 
Y.  App.  Div.  1910),  121  N.  Y.  Supp. 
788,  citing  Cullman  v.  Burkard,  93 
App.  Div.  (N.  Y.)  31,  86  N.  Y.  Supp. 
1003;  Lyman  v.  Shenandoah  Social 
Club,  39  App.  Div.  (N.  Y.)  450,  57 
N.  Y.  Supp.  372;  Lyman  v.  Perl- 
mutter,  166  N.  Y.  410,  60  N.  E.  21. 

f>o.  Douthit  v.  State,  98  Tex.  344, 
83  S.  W.  795. 

91.  O'Brien  County  v.  Mahon,  126 
Iowa  539,  102  N.  W.  446. 

u-2.  Carter  v.  Nicol,  116  Iowa  519, 
90  N.  W.  352. 

93.  Lyman    v.    Shenandoah    Social 


Club,  39  App.  Div.    (N.  Y.)    459,  57 
N.  Y.  Supp.  372. 

94.  Cullinan  v.  Burkard,  93  App. 
Div.  (N.  Y.)  31,  86  N.  Y.  Supp. 
1003. 

95.  Hillman  v.  Gallagher  (Tex.  Civ. 
App.  1909),  120  S.  W.  505. 

Compare  State  v.  Williams,  10  Tex. 
Civ.  App.  346,  30  S.  W.  477,  holding 
that  where  a  bond  has  been  executed 
under,  and  in  accordance  with,  in- 
toxicating liquor  laws  in  force  at  the 
time  of  its  execution  and  liabilty  has 
been  incurred  thereunder  such  lia- 
bility becomes  one  of  contract  and  is 
not  impaired  by  the  passage  of  a  sub- 
sequent   statute. 

Is  an  action  for  a  debt.— An 
action  on  a  bond  to  recover  for  un- 
lawful sales  to  a  minor  is  one  for  a 
"  debt "  and  is  barred  by  the  provi- 
sions of  an  act  that  an  action  for  a 
debt  not  evidenced  in  writing  must  be 
brought  within  a  certain  period  of 
time.  Hillman  v.  Gallagher  (Tex. 
Civ.  App.  1909),  120  S.  W.  505. 


BONDS. 


413 


§  3G4] 

be  rendered  against  the  sureties  alone  but  under  the  provisions 
of  a  statute  it  may  be  necessary  to  include  the  principal  in  the 
judgment.90 


§  364.  Parties  to  actions  on. 

Where  the  statute  designates  what  officers  shall  bring  an  action 
upon  a  bond  it  must  be  brought  by  those  named.97  A  bond  to  a 
person  by  name  followed  by  a  statements  of  the  capacity  in  which 
he  acts  may  be  sued  upon  by  him  or  his  successors  in  office  though 
the  latter  are  not  named  in  the  bond.98  And  an  action  may  by 
virtue  of  a  statute  be  maintained  by  a  citizen  of  the  county  in  the 
name  of  the  state  for  a  violation  thereof.99     But  in  a  suit  against 


96.  Commonwealth  v.  Stringer,  78 
Ky.  56.  That  the  principal  is  not  a 
necessary  party  to  an  action  on  a  bond 
conditioned  to  pay  all  damages  re- 
sulting from  the  sale  of  liquor.  See 
Knott  v.  Peterson,  125  Iowa  404,  101 
X.  W.  173. 

97.  People  v.  Groat,  22  Hun 
(N.  Y.),   104. 

Bond  not  payable  as  statute 
provides. — Where  the  object  of  mak- 
ing a  bond  payable  to  the  state  is  that 
suit  may  be  brought  in  the  name  of 
the  state  for  the  use  of  the  county 
if  it  is  not  so  payable  the  state  has 
no  interest  in  a  suit  thereon  either 
as  beneficiary,  trustee  or  otherwise. 
State  v.  Vinson,  5  Tex.  Civ.  App. 
315,  23  S.  W.  807. 

And  in  an  early  case  in  Nebraska 
where  a  bond  was  made  to  a  city,  in- 
stead .if  t'>  the  county,  and  contained 
no  provision  for  the  payment  of  all 
damages  winch  might  be  adjudgi  d 
against  the  licensed  parties  as  pro- 
vided in  the  statute,  BUCh  bond  was 
held  to  be  a  nullity  and  it  was  de- 
clared that  no  action  for  a  breach  of 
its    conditions    could    be    maintained 


thereon.  Sexson  v.  Kelley,  3  Neb. 
104. 

But  in  a  later  case  in  this  state  it 
is  held  that  a  bond  given  to  the  vil- 
lage instead  of  the  state  is  not  for 
that  reason  invalid  and  that  a  wife 
may  maintain  an  action  thereon  for 
loss  of  means  of  support  in  conse- 
quence of  sales  to  her  husband,  the 
bond  not  being  for  the  use  of  the 
state  but  for  persons  who  may  sus- 
tain injuries  by  reason  of  such  sales, 
and  there  being  no  provision  in  the 
statute  that  the  bond  will  be  void  if 
another  obligee  than  the  state  is 
named  therein.  Thomas  v.  Hinkley. 
19  Neb.  324,  27  N.  W.  231. 

9S.  Granger  v.  llayden,  17  R.  I. 
170.  20  Atl.  S33. 

A  bond  payable  to  "  the  City 
Treasurer  of  the  city  of  Providence  " 
has  been  held  sufficient  though  his 
name  was  ih.i  inserted.  Tripp  v. 
Norton,  10  P..  I.  125.  See  also  Red- 
path  v.  Nottingham,  :>  Blachf.  dnd.i 
207. 

'■>'■>.  State  v.  Mart  land.  71  Iowa  543, 
32  N.  W.  485. 


414  BONDS.  [§  365 

a  licensed  saloon  keeper  and  the  surety  in  his  bond,  one  not  a  party 
to  the  bond  cannot  properly  be  joined  as  a  party  defendant.1 


§  365.  Pleading. 

Where  by  statute  it  is  essential  to  render  a  bond  enforceable 
that  it  be  both  approved  and  filed  the  complaint  in  an  action 
thereon  should  allege  the  approval  and  filing.2  In  alleging 
breaches  of  the  bond  the  petition  need  not  where  there  are  several 
counts  for  a  breach  of  the  same  condition  set  out  the  condition  in 
full  in  each  count  but  it  is  sufficient  to  set  it  out  in  full  in  the  first 
and  make  appropriate  reference  thereto  in  the  successive  counts.3 
And  where  several  breaches  are  assigned,  one  of  which  is  good,  a 
demurrer  to  the  whole  declaration  for  the  insufficiency  of  the 
breaches  assigned  must  be  overruled.4  But  a  declaration  which 
charges  illegal  sales  at  other  places  than  that  specified  in  the  license 
states  no  cause  of  action  against  the  sureties  on  the  bond,  as  the  lia- 
bility upon  the  bond  is  confined  to  sales  made  at  the  place  licensed.5 
And  where  a  bond  is  conditioned  that  the  holder  of  a  tax  certifi- 
cate will  not  "  while  the  business  for  which  such  liquor  tax  certifi- 
cate is  given  shall  be  carried  on  "  violate  any  provisions  of  the 
Liquor  Tax  Law,  a  complaint  against  the  surety  should  allege  the 
specific  time  when  the  violations  in  question  occurred  or  that  they 


1.  Sullivan   v.   Radzuweit,   82   Neb.  of  a  bond  is  an  allegation  of  its  due 
657,  118  N.  W.  571.  delivery.     Jacobs  v.  Hogan,  73  Conn. 

2.  A    declaration    averring   that    a  740,  49  Atl.  202. 

bond  was  duly  delivered  to  the  county  3.  Moniteau  County  v.  Bechtle,  123 

treasurer   of  the   proper   county,   and  Mo.  App.  073,  100  S.  W.  1107. 

had  thereon  endorsed,  at  the  time  of  Sufficiency  of  complaint  or  peti- 

such    delivery,    the    approval    of    the  tion  in  action  on  bond.     See  Maier  v. 

proper  village  board,  and  was  by  the  State,  2  Tex.  Civ.  App.  29G,  21  S.  W. 

iirer  duly  filed  in  his  office  suffi-  974;   Jones  v.   Sales,  25  Iowa  25. 

eiently  alleges  the  approval  and  filing  4.  Redpath      v.      Nottingham,      5 

of  the  bond  by  the  proper  authorities.  Blackf .    (    Ind. )    207. 

Anthony    v.    Krey,   70   Mich.   629,    38  5.  Adams   v.  Miller,   81   Miss.   613, 

X.  VV.  603.  33   So.  489. 
An   allegation   of   "  execution  " 


§§  366,367]  B0NDS-  ±15 

occured  while  the  business  for  which  the  certificate  was  given 
was  being  carried  on  and  if  it  fails  to  do  so  i1  i-  d<  murrable.8 

§  366.  Evidence  in  action  on. 

Before  an  aggrieved  person  is  entitled  to  recover  on  a  liquor 
dealer's  bond  it  is  held  essential  to  show  that  a  license  has  been 
issued  to  the  dealer.7  And  the  burden  of  proof  rests  upon  the 
plaintifr  in  an  action  on  such  a  bond  and  before  he  can  r<  cover  he 
must  establish  all  the  facts  necessary  to  his  recovery  by  a  pre- 
ponderance of  the  evidence.8  And  in  this  connection  it  is  decided 
that  a  record  showing  a  plea  of  guilty  to  an  indictment  for  the 
same  violation  of  law  as  is  alleged  as  a  breach  and  the  sentence  to 
pay  a  fine  is  prima  facie  evidence  of  the  breach  complained  of  in 
an  action  against  the  surety.9 

§  367.  Right  to  question  validity  of  bond. 

The  principle  that  when  a  bond  is  voluntarily  entered  into  and 
the  principal  enjoys  the  benefits  it  was  intended  to  secure  and  a 
1. reach  occurs  it  is  then  too  late  to  question  its  validity,  the  parties 
being  tin  n  estopped,  to  avail  themselves  of  this  defense,  is  held  to 
apply  to  liquor  bonds.10      So  the  sureties  on  the  bond  are  not  re- 

«•  Lyman    v.    Siebert,    31    Misc.    R.  Signing     of     Lond.— Where     the 

IN.  Y.)   2s.-),  65  X.  Y.  Supp.  367.  sureties    have    duly    executed    the    re- 

7.  Hillman  v.  Gallagher  (Tex.  Civ.  quired  bond  and  it  has  been  accepted 
App.   1909),    120  S.  W.  505.  and  approved  by  the  proper  otiicer  or 

8.  Allen  v.  Houck  &  Dieter  Co.  officers,  the  sureties  cannot  escape  lia- 
(Tex.  Civ.  App.  1906),  92  S.  W.  993.  bility  on   the  ground   that    the   bond 

!».  Albrechl    v.  State,  62  Miss.  516.  was     not     signed     by    the    principal. 

See    Webbs    v.    Stale.    Cold.    (Tenn.)  North  v.  Barringer,   147   End.  J-M.  46 

Lgg.  N.  E.   531. 

to.  People  ex  rel.  Meakin  v.  Eck-  And  it  is  no  defense  thai  a  bond 
man,  63  Eun  (N.  VA,  209,  L8  \.  Y.  was  signed  in  the  partnership  name 
Supp.  654;  Mount  Pleasanl  v.  Green-  by  one  of  the  parties  without  any 
Ire.  63  W.  Va.  207,  60  S.  E.  601.  authority  under  seal  from  his  co- 
Want  of  seal.— The  sureties  upon  partners  where  a  plea  of  non  est 
a  bond  cannot  defeat  a  recovery  factum,  verified  by  oath  as  the  stat- 
thereon  by  alleging  a  want  of  seal.  ute  requires  has  not  been  tiled. 
People  v.*  Groat,  22  Hun  (N.  Y.),  Greene  County  v.  Wilhite.  29  Mo. 
164.  APP-  459- 


416  BONDS.  [§   367 

lieved  from  liability  by  the  fact  that  the  statutory  affidavits  are 
not  annexed  thereto,  as  it  is  their  duty  to  see  that  the  required  affi- 
davits are  so  annexed  and  they  cannot  set  up  their  own  neglect  as 
a  defense.11  And  it  is  decided  that  as  against  the  licensee  and 
the  sureties  upon  his  bond  a  license  will  be  considered  as  issued 
in  conformity  to  law  and  neither  he  nor  the  sureties  will  be  per- 
mitted in  an  action  on  the  bond  to  deny  the  validity  of  the 
license.12  But  where  a  bond  was  executed  under  the  mulct  law, 
when  in  fact  it  was  not  required  because  the  principal  was  not 
engaged  in  the  liquor  business  under  that  law  it  was  held  that  it 
was  not  rendered  valid  by  a  subsequent  law  making  the  mulct  law 
applicable  to  the  principal  in  the  bond.13 

11.  Clinton    v.    Laning,    73    Mich.  Compare  Lyman  v.  Kane,  57  App. 
284,  41  N.  W.  424.  Div.    (N.    Y.)    549,    67    N.   Y.    Supp. 

12.  Schullherr    v.    State,    68    Miss.  1065,   holding  that  it   is  essential  to 
227    8  So.  328.  the  liability  of  the  sureties  on  a  bond 

See  also  State  v.  Golding,  28  Ind.  that  the  license  or  certificate  in  con- 

App.  233,  62  N.  E.  502,  holding  that  nection  with  which  it  is  given  is  a 

defendants  cannot  set  up  as  a  defense  valid  one. 

to  an  action  on  a  bond  that  it  was  13.  Gorman  v.  Williams,  117  Iowa 

void  because  the  license  was  issued  to  560,  91  N.  W.  819. 
them  jointly  and  was  void. 


§   3G8]  LOCAL    OPTION    LAWS    GENERALLY.  417 


CHAPTER  XVI. 

LOCAL  OPTION  LAWS  GENERALLY. 

Section  3G8.  Local  option  laws — constitutionality  of  generally. 

369.  Same  subject — not  a  taking  of  property. 

370.  Same  subject — not    special    or    class    legislation — uniform    and 

general. 

371.  Same  subject — not  a  delegation  of  legislative  power. 

372.  Local  option  laws — construction  of  generally. 

373.  Constitutional  provisions  as  to. 

374.  Local  option  laws  as  repealing  prior  law. 

375.  Local  option  law  merely  suspends  prior  laws. 

376.  Effect  of  adoption  on  license  laws. 

377.  Effect  of  adoption — resident  of  local  option  territory  may  pur- 

chase in  wet  territory  for  own  use. 

378.  Binding  effect  of  vote  on  entire  subdivision. 

379.  Same  subject — where  boundaries  changed. 

380.  Statement  of  consent — Iowa. 

Sec.    368.  Local  option  laws — constitutionality  of  generally. 

In  many  states  the  legislatures  instead  of  prohibiting  or  licens- 
ing the  traffic  for  the  entire  state  have  passed  general  laws  in 
reaped  thereto  and  authorized  certain  designated  political  subdi- 
visions of  the  state  such  as  counties,  parishes,  towns  or  cities  to 
determine  each  for  itself  by  popular  vote  whether  such  traffic  may 
be  carried  on  within  its  limits.  Laws  of  this  character  have  been 
vigorously  assailed  in  the  courts  on  various  grounds  which  we 
will  consider  in  the  subsequenl  sections  as  being  unconstitutional 
but  as  a  general  rule  aside  from  a  few  early  decisions  their  con- 
stitutionality has  been  sustained.1     This  is  a  matter  of  mere  police 

1.  Busch  &  Co.  v.  Webb,  122  Fed.  United    States.— Weil    v.    Calhoun, 

855.  -r'  Fed.  S(;:>- 


418 


LOCAL    OPTION    LAWS    GENERALLY. 


[§  3G8 


regulation  and  a  proper  one  for  the  submission  to  the  people  of  a 
locality  even  such  as  a  municipality  as  it  is  only  allowing  powers 


Connecticut. — State  v.  Wilcox,  42 
Conn.   304,   19  Am.  Rep.  536. 

Florida. — Hallbeek  v.  State, 

(1909),   49   So.    153. 

Georgia. — Barnesville  v.  Means, 
128  Ga.  197,  57  S.  E.  422;  Smith  v. 
State,  112  Ga.  291,  37  S.  E.  441; 
Caldwell  v.  Barrett,  73  Ga.  604. 

Iotca. — State  v.  Forkner,  94  Iowa 
1,  62  N.  W.  683,  28  L.  R.  A.  206. 

Kentucky. — Stickrod  v.  Common- 
wealth, 86  Ky.  285,  5  S.  W.  580,  cit- 
ing Commonwealth  v.  Weller,  14 
Bush  218;  Sarris  v.  Commonwealth, 
83  Ky.  327;  See  also  Gayle  v.  Owen 
County  Court,  83  Ky.  61. 

Louisiana. — Garrett  v.  Mayor,  47 
La.  Am.  618,  17  So.  238. 

Maryland. — Price  v.  Liquor  License 
Commissioners,  98  Md.  346,  57  Atl. 
215;  Fell  v.  State,  42  Md.  71,  20 
Am.  Rep.  83. 

Massachusetts. — Commonwealth  v. 
Dean,   110  Mass.   357. 

Michigan. — Feek  v.  Township 
Board,  82  Mich.  393,  47  N.  W.  37, 
10  L.  R.  A.  69. 

Minnesota. — State  v.  Johnson,  86 
Minn.   121,  90  N.  W.   121. 

Missouri. — State  v.  Campbell,  214 
Mo.  362,  113  S.  W.  1081;  Ex  parte 
Handler,  176  Mo.  383;  75  S.  W.  920. 
citing  State  v.  Pond,  93  Mo.  606,  6 
S.  W.  469;  Ex  parte  Swann,  96  Mo. 
44,  9  S.  W.  10:  Ex  parte  Mitchell, 
104  Mo.  121,  16  S.  W.  118;  State  v. 
Dillard  Moore.  107  Mo.  78,  16  S.  W. 
937:  State  v.  Searcy,  111  Mo.  236, 
20  S.  W.  186;  State  v.  Watts,  111 
Mo.  554,  20  S.  W.  237;  State  v. 
Wingfield;  115  Mo.  428,  22  S.  W.  363; 
Warrensburgh  v.  McHugh,  122  Mo. 
649,  27   S.   W.   523. 

Montana. — Tn  re  O'Brien,  29  Mont. 
530,  75  Pae.  200. 


Nebraska. — Hunzinger  v.  State,  39 
Neb.  653,  58  N.  W.   194. 

New  Jersey. — State  v.  Court  of 
Common   Pleas,   36   N.   J.   L.   72. 

Ohio. — Gordon  v.  State,  46  Ohio 
St.  607,  23  N.  E.  63,  6  L.  R.  A.  749. 

Oregon. — Baxter  v.  State,  49  Oreg. 
353,  88  Pac.  677,  89  Pac.  369. 

Pennsylvania. — Locke's  Appeal,  72 
Pa.  St.  491,   13  Am.  Rep.  716. 

South  Dakota. — State  v.  Barker, 
19  S.  D.   1,   101   N.  W.   1078. 

Texas. — Hoover  v.  Thomas,  35  Tex. 
Civ.  App.  535,  80  S.  W.  859;  Bow- 
man v.  State.  38  Tex.  Cr.  14,  40  S.  W. 
796,  41  S.  W.  635 ;  Sweeney  v.  Webb, 
33  Tex.  Civ.  324,  76  S.  W.  766; 
Steele  v.  State,  19  Tex.  App.  425; 
Holley  v.  State,  14  Tex.  App.  505. 

Vermont, — State  v.  Seampini,  77 
Vt,  92.  59  Atl.  201 ;  State  v.  Parker, 
26  Vt.  357. 

Virginia. — Willis  v.  Kalmbach, 
109  Va.  475,  64  S.  E.  342;  Savage  v. 
Commonwealth,  84  Va.  619,  5  S.  E. 
565. 

Contra  examine  Santo  v.  State,  2 
Iowa  165;  Ex  parte  Wall,  48  Cal.  279, 
17  Am.  Rep.  425;  McGonnell's  Li- 
cense, 24  Pa.  Super.  Ct.  642. 

A  provision  in  a  village  char- 
ter providing  for  the  submission  of 
the  question  license  or  no  license 
to  a  vote  of  the  electors  is  not  un- 
constitutional as  that  question  re- 
laics  to  a  local  regulation  which  it 
is  competent  for  the  legislature  to 
submit  to  the  people  of  the  district. 
Gloversdale  v.  Howell.  70  N.  Y.  287. 

W^ord  municipality  applies  to 
hamlets. — Tn  Ohio  the  statute  pro- 
viding for  an  election  in  any  munici- 
pality is  held  to  apply  to  hamlets  as 
the  same  existed  prior  to  the  adop- 
tion of  the  municipal  code.     Carey  v. 


§  308] 


LOCAL    OPTION    LAWS    GENERALLY. 


410 


which  are  less  extensive  than  those  which  a  municipal  charter 
might  confer.2  Furthermore  the  people  of  one  locality  may  under 
the  conditions  surrounding  them  feel  the  need  of  a  law  which 
differs  from  that  prevailing  in  another  locality  and  it  is  in  recog- 
nition of  this  fact  that  the  legislatures  of  many  Btates  have  there- 
fore passed  laws  of  this  character/5      Such   an  enactment   does 


State,  70  Ohio  St.  121,  70  N.  E.  955. 

Provisions  exempting  sales  by 
druggists. — A  provision  in  a  local 
option  law  by  which  sales  by  drug- 
gists for  certain  purposes  and  under 
certain  conditions  are  exempted  from 
the  operation  of  the  law  is  valid  as 
it  is  said  such  sales  do  not  partake 
of  the  nature  of  the  saloon  business 
and  it  has  always  been  regarded  as 
proper  to  exempt  them  from  the  oper- 
ation of  a  dramshop  license  or  pro- 
hibitory laws.  People  v.  McBride, 
234  111.  146,  84  N.  E.  865. 

In  Arkansas  an  order  of  the 
country  court  which  is  prohibitory 
of  the  sale  of  liquor  remains  in  force 
until  upon  a  petition  of  a  majority 
of  the  adult  inhabitants  of  such  ter- 
ritory the  county  court  sets  aside  the 
order  and  permits  the  sale  Kettern 
v.  State,  72  Ark.  90,  78  S.  W.  758. 

In  this  state  it  has  been  provided 
by  a  statute  in  the  nature  of  a  local 
option  law  provided  that  upon  peti- 
tion a  majority  of  the  adult  inhabi- 
tants within  three  miles  of  any  school 
house,  academy,  college,  university  <>r 
other  institution  or  of  any  church 
shall  desire  to  prohibit  the  sale  of 
liquors  in  such  district,  the  county 
court  shall  make  an  order  to  that 
effect.  Bridewell  v.  Ward,  72  Ark. 
187,  79  S.  W.  762. 

An  inhabitant  under  this  law  is 
one  who  has  a  fixed  place  with  no 
intention  of  removing  elesewhere. 
Wilson  v.  Lawrence,  70  Ark.  .">!.").  69 
S.  W.  570. 

And  in  this  state  it  is  decided  that 


one  who  appeared  in  the  probate 
court  and  asked  thai  an  order  pro- 
hibiting the  sale  of  liquor  within  a 
certain  three  mile  territory  be  re- 
voked is  not  "  aggrieved "  if,  with- 
out objection  on  his  part,  the  court 
granted  his  petition  and  revoked 
such  order,  and  therefore  is  not  en- 
titled to  appeal  from  such  order  of 
revocation.  Phillips  v.  Goe,  85  Ark. 
304,  108  S.  W.  207. 

Sufficiency  of  description  of  school 
house  in  order  putting  into  force 
prohibition  within  a  certain  distance 
thereof.  See  Lindley  v.  State  (Ark. 
1909),  120  S.  W.  987. 

In  South  Dakota  under  the  Rev. 
Pol.  Code,  §  2837  as  amended  by  Law 
1905,  p.  180,  c.  124.  an  affirmative 
vote  in  favor  of  license  is  essential  to 
the  right  to  sell  liquors  in  any  mu- 
nicipality. State  v.  Stakke  (S.  D. 
puts),  118  N.  W.  703. 

What  is  a  political  subdivi- 
sion.— A  commissioner's  precinct  is  a 
political  subdivision  under  the  Texas 
statute.  Cofield  v.  Britton  (Tex.  Civ. 
App.   1908),  109  S.  W.  493. 

But  an  election  precinct  is  not  a 
political  subdivision  of  a  county.  /'  i 
parte  Pollard,  51  Tex.  Gr.  488,103 
S.  W.  878. 

And  a  school  district  is  not  a  politi- 
cal subdivision  for  the  purpose  of 
adopting  local  option.  Ex  parte 
11  aney.    .'.I    Tex.    Cr.    634,    103    S.    W. 

1155. 

i.'.  State  v.  Cooke.  21  Minn.  217.  31 
Am.  Rep.  344. 

3.  Feek     v.     Township     Board     of 


420  LOCAL    OPTION    LAWS    GENERALLY.  [§   359 

not  contravene  the  scheme  of  a  constitutional  provision  as  to 
schools  that  "  all  moneys  received  for  licenses  granted  under  the 
general  laws  of  the  state  for  the  sale  of  intoxicating  liquors  or 
keeping  dramshops "  shall  be  devoted  to  their  support.4  And 
though  a  provision  in  a  local  option  law  restricting  the  sale  of 
wine  to  such  as  is  manufactured  from  the  pure  juice  of  the  grape 
"  cultivated  in  this  state  "  may  be  invalid  as  a  discrimination  in 
favor  of  domestic  wines  it  will  not  affect  the  provisions  of  the 
statute  as  a  whole.5  In  Florida  it  has  been  decided  that  a  section 
of  a  statute  providing  for  the  prosecution  of  those  selling  liquor 
in  counties  or  precincts  voting  against  such  sale  is  not  unconstitu- 
tional because  of  the  omission  of  the  word  "  intoxicating  "  before 
the  word  "  liquors  "  therein.6 

§  369.  Same  subject — not  a  taking  of  property. 

A  local  option  law  does  not  take,  damage  or  destroy  private 
property  for  public  use  within  the  meaning  of  the  constitutional 
provision  forbidding  such  a  taking.7  So  the  legislature  may  con- 
fer upon  the  counties  of  the  state  the  power  to  prohibit  by  local 
option  the  sale  of  intoxicating  liquors  within  the  county  and  such 
an  act  is  not  in  violation  of  the  United  States  constitution  as  de- 
priving a  person  of  his  property  without  due  process  of  law  nor 
does  it  conflict  with  any  act  of  Congress.8  And  it  is  decided  that 
the  fact  that  a  local  option  law  may  diminish  the  value  of  property, 
such  as  a  brewery  and  its  fixtures  resulting  from  the  inability  of 
the  owners  to  adjust  their  old  business  to  the  new  law  is  damnum 
absque  injuria  it  being  declared  that  such  a  law  does  not  take  or 


Bloominpdalo,    82   Mich.    303,    47    N.  «•  Hallbeck  v.   State    (Fla.    1909), 

W.  37,  10  L.  R.  A.  C><).  49  So.  153. 

4.  Lemon  v.  Peyton,  64  Miss.  161,  *•  Ex    parte    Lynn,    19    Tex.    App. 
8  So.  2nr>.  293,   followed  in   Ex  parte  Kennedy, 

5.  Strvons    v.    State,    61    Ohio    St.  23  Tex  App.  77,  3  S.  W.  114. 

597,  56  N.  E.  478.  8<  Territory    v.    O'Connor,    5    Dak. 

397,  3  L.  R.  A.  355. 


§   ;>7<)j  LOCAL    OPTION    LAWS    GENERALLY.  421 

damage  their  property  for  the  use  of  the  public  bu1  only  prevents 
them  from  taking  or  damaging  the  public  for  their  use.9 

§  370.  Same  subject  not  special  or  class  legislation — uniform  and 
general. 
Laws  of  this  nature  have  frequently  been  assailed  on  the  ground 
that  they  are  not  uniform  in  operation  and  arc  in  the  nature  of 
special,  local,  or  class  legislation,  in  that  by  virtue  of  them  a 
different  law  may  prevail  in  one  locality  than  prevails  in  another. 
Courts  however  have  not  looked  with  favor  upon  this  contention 
and  the  rule  prevails  that  where  such  an  act  operates  alike  through- 
out the  state  it  is  not  legislation  of  such  a  character.  Its  uni- 
formity under  such  circumstances  is  not  destroyed  because  one  or 
more  of  the  subdivisions  designated  may  avail  itself  of  its  provis- 
ions as  every  subdivision  may  do  so  if  it  chooses.10  A  constitu- 
tional provision  that  "  the  legislature  shall  not  pass  private,  local 
or  special  laws  regulating  the  internal  affairs  of  towns  and 
counties  "  is  not  intended  to  secure  uniformity  in  the  exercise  of 
delegated  police  powers  but  to  forbid  the  passing  of  a  law  vesting 
in  one  town  or  county  a  power  of  local  government  not  granted 


O.  Menken   v.   City   of   Atlanta,   78  South       Dakota. — State      ex      rel. 

Ga.   668,   2   S.   E.   559.      See  also   Ex  Crothers  v.   Barber,   19   S.   D.   1,    101 

parte  Swann,  96  Mo.  44.  it  S.  W.  10.  X.  W.   1078. 

lo.  Dakota. — Territory  v.  O'Connor,  Texas. — Sweeney  v.   Webb,  •'>:>  Tex. 

5  Dak.  .397,  41  X.  W.  746,  3  L.  R.  A.  Civ.  App.  324,  76  S.  W.  766. 

355.  Compare  Maize  v.  State,  4  [nd.  ."42. 

Georgia. — Smith   v.   State.    112   Ga.  Where  sole  power  was  given  to 

291,  37  S.   K.  441.  the    commissioners    in    each    county 

Minnesota. — State    v.    Johnson,    86  to  granl   licenses  it   was  decided  that 

Minn.  121,  90  X.  W.  161.  the  fad  that  the  commissioners  in  the 

Missouri. — Ex   parte    Handler,    17G  differenl  counties  might  entertain  dif- 

Mo.   383,   75   8.    W.    920;    Ex   parte,  ferent    views   in    relation    to    the    ex- 

Swann.  96  Mo.  4  1.  9  S.  W.  10;  State  pediency    <>f    granting                    gen- 

v.  Pond.  93  Mo.  cm;.  6  S.  W.   169.  .Tilly  and  thereby  cause  the  statute 

Montana.     I ,i  re  O'Brien,  29  Mont.  to    operate    differently     in     different 

530,  75  Pac.  200.  parts  of  the  state  did  noi    affect    its 

Ohio.— Gordon  v.  State.  40  Ohio  St.  validity.     Bancroft    v.   Dumas,  21   Vt. 

607,  23  X.  E.  63,  0  L.   K.  A.  749.  456. 


422  LOCAL    OPTION    LAWS    GENERALLY.  [§   371 

to  another.11  So  the  fact  that  a  different  penalty  is  imposed  for 
a  violation  of  the  local  option  law  in  the  locality  in  which  it  is 
adopted  than  is  imposed  for  the  same  violation  of  the  general  law 
in  other  sections  of  the  state  does  not  render  it  objectionable  as 
not  operating  upon  every  citizen  alike,  it  being  sufficient  if  it 
operates  equally  upon  all  who  in  all  parts  of  the  state  come  under 
the  same  circumstances  and  conditions.12  And  it  has  been  decided 
that  a  statute  whose  provisions  are  applicable  to  counties  having  a 
certain  population  is  not  obnoxious  as  class  or  special  legislation 
because  at  the  time  there  is  only  one  county  to  which  the  law 
applies.13 

§  371.  Same  subject — not  a  delegation  of  legislative  power. 

While  the  legislature  may  not  delegate  to  the  people  the  au- 
thority to  make  the  law,  or  to  say  what  kind  of  a  restrictive  meas- 
ure shall  be  adopted,  or  propose  a  law  and  submit  it  to  the  vote 
of  the  people  to  say  whether  or  not  it  shall  in  fact  be  enacted  into 
law,  it  may  pass  an  act  which  takes  effect  only  upon  the  happen- 
ing of  a  contingency  such  as  a  favorable  vote  of  the  people.14 
Therefore  the  legislature  may  pass  a  local  option  law  by  which  it 
is  left  to  the  voters  of  each  subdivision  to  create  the  contingency 
upon  which  such  law  takes  effect  and  it  will  not  be  regarded  as 
unconstitutional  as  being  a  delegation  of  legislative  power.15     If 

11.  Paul  v.  Gloucester  County,  50  15.  Dakota. — Territory  v.  O'Con- 
N.  J.  L.  585,  15  Atl.  272,  1  L.  R.  A.  nor,  5  Dak.  397,  41  N.  W.  746,  3 
86n.  L.  R.  A.  355. 

12.  Ex  parte  Handler,  176  Mo.  383,  Kentucky. — Commonwealth  v.  Wel- 
75  S.  W.  920,  citing  Gordon  v.  State,  ler,  14  Bush.  218,  29  Am.  Rep.  407. 
46  Ohio  St.  607,  23  N.  E.  63.  Michigan.— People     v.     Collins,     3 

13.  Hunzinger    v.    State,    39    Neb.  Mich.  343. 

653,  58  N.  W.  194.  Missouri.— Ex  parte  Swann,  96  Mo. 

14.  In   re   O'Brien,    29    Mont.    530,       44,  9  S.  W.  10. 

536,  75  Pac.  200.     Per  Halloway,  J.,  Montana.    In  re  O'Brien,  29  Mont, 

in  construing  a  local  option  law.  530,  75  Pac.  200. 

See  also  Feek  v.  Township   Board  New    Jersey. — Paul    v.    Gloucester 

of    Bloomingdale,    82    Mich.    393,    47  County,  50  N.  J.  L.  585,  15  Atl.  272, 

X.   W.    37,   10  L.  R.   A.   69;    State  v.  1  L.  R.  A.  86n. 
Pond,  93  Mo.  606,  6  S.  W.  469. 


371]  LOCAL   OPTION     LAWS    GENERALLY.  }_>:; 

a  local  option  law  is  complete  in  all  its  parts  it  i-  an  expression  of 
legislative  will  none  the  Less  that  the  contingency  upon  which  it 
takes  effect  in  any  particular  locality  La  mode  to  depend  upon  the 
favorable  vote  of  the  people  of  thai  Locality.16  An  acl  of  this  char- 
acter is  not  a  submission  to  the  people  of  the  question  of  passing  a 
Law.  W  the  vote  is  againsl  the  sale  it  is  the  Law  and  nol  the 
which  is  the  declaration  againsl  it  as  the  vote  springs  from  the  law 
and  not  the  law  from  the  vote.17  So  in  one  of  the  earlier  cases  in 
Kentucky  it  was  said:  "  while  the  law  making  power  cannot  dele- 
gate to  the  people  the  right  to  assemble  and  frame  such  laws  as 
may  be  deemed  best  for  their  own  interests,  and  to  adopt  them  by 
a  popular  vote,  it  is  not  inconsistent  with  our  representative  sys- 
tem of  government  to  consult  the  popular  will  as  to  the  propriety 
of  a  law  already  enacted."  1S  So  a  provision  in  a  law  that  if  the 
majority  of  the  legal  voters  in  a  county  shall  vote  against  the  sale 
of  intoxicating  and  brewed  liquors  no  license  shall  be  granted 
within  the  county  for  the  sale  thereof  is  not  an  unlawful  delega- 
tion of  power  by  the  legislature.19  And  an  act  prohibiting  the 
manufacture  of  such  liquors  and  providing  for  a  submission  to 
the  people  for  their  approval  or  disapproval  upon  which  it  is  to 
depend  whether  the  act  is  to  take  effect  upon  a  certain  day  or  sub- 
sequently, is  held  not  to  be  a  delegation  of  legislative  power  to 
the  people,  the  act  being  declared  to  be  complete  when  it  passed 
from  the  hands  of  the  legislature,  and  requiring  nothing  to  be 
added  to  or  taken  away  from  the  provisions  by  the  people.20  And 
it  has  also  been  decided  that  an  act  to  prohibit  the  sale  of  intoxi- 


Bouth  Dakota. — State  v.  Barber,  10  530.  7:.  Pac.  200.     Per  Halloway,  J. 

S.  D.  1,  101   \.  W.  1078.  17-  sen,,  v.   Pond,   93   Mo.  006,  6 

Virginia. — Savage       v.       Common-  S.  W.   169. 

wealth,  84  Va.  619,  5  S.  E.  565.  1S-  Commonwealth    v.    Weller,    14 

Compare    ex    parte    Wall,    48    Cal.  Bush.    (Ky.)    218,  29   Am.  Rep.  407. 

279,  17  Am.  Rep.  125;  Santo  v.  State,  Per  Pryor,  C.  J. 

2  Iowa  165;   State  v.  Weir,  33  Iowa  !»•  Paul   v.  Gloucester  County,   50 

134.  N.  J.  L.  585,  15  Atl.  272,  1   L.  R.  A. 

16.  In   re   O'Brien,   29    Mont.    530,  SOn. 


424 


LOCAL    OPTION    LAWS    GENERALLY. 


[§  372 


eating  liquors  may  be  applied  to  a  single  comity,  civil  district  or 
other  described  territory,  and  that  its  operation  may  be  made  to 
depend  in  each  case  upon  the  popular  will  expressed  at  the  polls 
by  voters  immediately  affected  by  it.21 

§  372.  Local  option  laws— construction  of  generally. 

Every  reasonable  intendment  is  to  be  resolved  in  favor  of  the 
constitutionality  of  a  local  option  law  and  before  the  court  will 
pronounce  a  solemn  enactment  of  the  legislative  assembly  invalid 
such  invalidity  must  be  made  manifest  beyond  a  reasonable 
doubt.22  And  a  proviso  in  a  local  option  statute  which  is  mean- 
ingless will  not  have  the  effect  of  rendering  an  entire  section  void 
where  the  remainder  of  the  section  is  capable  of  a  clear  construc- 
tion and  enforcement.23  And,  as  in  the  case  of  other  enactments, 
a  repeal  by  implication  is  not  favored.24  So  a  later  statute  will  not 
repeal  a  former  one  by  implication  when  the  two  laws  are  not  irre- 


20.  People  v.  Collins,  3  Mich.  343. 

21.  Stickrod  v.  Commonwealth,  86 
Ky.  285,  5  S.  W.  580,  eiting  Common- 
wealth v.  Weller,  14  Bush.  (Ky.) 
218;  Sarris  v.  Commonwealth,  83 
Ky.  327. 

22.  in  re  O'Brien,  29  Mont.  530, 
546,  75  Pac.  200.     Per  Halloway,  J. 

A  construction  -which  would 
lead  to  absurd  results  will  not  be 
adopted  unless  compelled  by  the  lan- 
guage. State  v.  Turner  (Mo.  App. 
1910),   12.",   S.  W.  531. 

Such  statutes  should  receive  a 
reasonable  construction. — State 
v.  Williams  find.  S.  C.  1910),  90  N. 
E.  754. 

"  Towns "  does  not  include 
cities.— Where  a  local  option  law 
pro-  the    submission    of   the 

question  to  the  voters  of  "towns  and 
incorporated  villages"  it  will  not  be 
construed  as  extendi]!'/  to  cities. 
Kleppe  v.  Gard  (Minn.  1909),  123 
X.  W.  665. 


Enforcement 
The    enforcement 
law    will     not    be 
ground    of    being 
Nirus   v.    Gilmore 
Pac.  79. 

23.  Ruhland   v. 


not     enjoined.— 

of  a  local  option 
enjoined  on  the 
illegally  adopted. 
(Ida.    1910),    107 

Waterman  (R.  I. 
1908),  71  Atl.  450,  1. 

The  fact  that  a  provision  in  a  lo- 
cal option  law  is  void  will  not  ren- 
der the  whole  act  void  if  such  pro- 
vision is  independent  of  and  can  be 
separated  from  the  rest  of  the  act ; 
which  will  be  complete  without  it. 
Gillesby  v.  Board  of  Commissioners 
of  Canton  County (  Ida.  S.  C.  1910), 
107   Pac.   71. 

24.  Snead  v.  State,  55  Tex.  Cr. 
583.  117  S.  W.  983;  State  v.  County 
Court    (Oreg.    1909),    101    Pac.   907. 

An  act  changing  the  name  of 
a  township  after  it  has  adopted 
local  option  does  not  operate  as  a  re- 
peal thereof.  State  v.  Cooper,  101 
N.  C.  084,  8  S.  E.  134. 


g   ;;7;.j  LOCAL   OPTION    LAWS    GENERALLY. 

concilably  inconsistent   and  can   stand   together   as   two  statutes 
upon  the  same  subject  should  be  so  construed  thai  they  may  stand 
if  possible.28     Again  an  act  providing  for  the  adoption  of  local 
option  in  counties  of  the  state  does  not  by  implication  apply  to 
sales  of  liquors  under  judicial  process  in  a  county  where  the  terms 
of  such  net  have  become  applicable  by  virtue  of  an  election  pre- 
scribed by  the  act  and  such  a  sale  is  not  a  public  nuisance  which 
may  be  enjoined.-0     Where  it  is  apparent  from  an  act  construing 
the  entire  act  together  that  it  was  the  intention  of  the  legislature 
that  to  prohibit  the  granting  of  a  license  in  a  given  territory  a 
majority  of  the  registered  voters  of  the  territory  instead  of  a  ma- 
jority of  the  votes  should  be  against  license,  the  act  will  be  so 
construed.27     In  Texas  the  local  option  laws  have  been  held  to  be 
strictly  and  essentially  criminal  laws  and  as  such  primarily  sub- 
ject to  the  decisions  of  the  criminal  courts  as  to  their  validity  and 
construction.28     And  it  is  also  decided  that  being  in  its  nature  a 
penal  law  it  should  be  strictly  followed  in  all  of  the  proceedings 
necessary  to  put  it  into  operation  as  otherwise  an  order  declaring 
it  to  be  in  force  is  void.29 

§  373.  Constitutional  provisions  as  to. 

In  some  states  there  are  provisions  in  the  constitution  in  re- 
spect to  local  option  such  as  making  it  incumbent  upon  the  legis- 
lature to  pass  some  general  law  in  regard  thereto,30  or  securing 

2r,.  state     v.     Rinke      (Mo.     App.  27.  Chalmers  v.  Funk.  76  Va.  717. 

1909),    121    S.   W.    159.  -s-  Commissioners   Court    v.   Beall, 

In  Missouri  it  is  decided  that  the  98  Tex.  104,  81  S.  W.  526. 
local  opt  inn  law  and  the  law  regu-  *>•  Griffin  v.  Tinker  (Tex.  Civ. 
lating  druggists  and  pharmacists  may  App.  1909),  119  S.  W.  338. 
co-exist  in  the  same  territory.  State  BO.  In  Kentucky  it  has  been  de- 
v.  McAnally  (Mo.  App.  1910),  125  S.  at  the  fact  that  the  constitu- 
W.  1174,  citing  Ex  parte  Swann,  96  tion  makes  it  incumbenl  on  the  Gen- 
Mo.  44,  9  S.  W.  10;  State  v.  Moore,  era!  Assemhly  to  provide  a  general 
107  Mo.  78,  16  S.  W.  937;  State  v.  law  on  the  subject  of  taking  the 
Williams.  38  Mo.  App.  37;  State  v.  sense  of  the  people  as  to  whether  liq- 
Bevans,  52  Mo.  App.  130.  uor  shall  be  sold  dees  nol  deprive  the 

20.  Fears   v.    State,    102    Ga.    274,  General    Assembly    of    the    power    to 

29  S.  E.  463.  permit  or  prohibit  the  sale  of  liquor 


426 


1.  HAL    OPTION    LAWS    GENERALLY. 


[§  374 


the  right  to  have  a  local  option  law.  And  where  the  right  to  have 
local  option  is  guaranteed  by  the  constitution  of  a  state  to  a 
county  this  right  cannot  be  abrogated  by  a  provision  in  the  charter 
of  a  city  within  such  county.  Thus  it  was  held  that  the  right  of 
a  county  to  adopt  local  option,  which  right  was  so  guaranteed, 
was  uot  affected  by  a  provision  in  the  charter  of  a  city  located  in 
such  county  by  which  the  city  was  given  power  to  license  and 
locate  saloons  within  its  limits.31 

§  374.  Local  option  law  as  repealing  prior  laws. 

A  local  option  is  held  to  operate  as  a  repeal  of  a  prior  law 
where  the  two  are  repugnant  and  cannot  be  reconciled.32  So  an 
act  as  to  sale  of  domestic  wines  is  held  to  be  repealed  by  adoption 
of  the  local  option  law.33  But  in  order  that  a  local  option  law  shall 
operate  as  a  repeal  of  other  special  statutes  in  force  it  must  have 
been  adopted  in  the  manner  prescribed  by  statute.34  And  a  gen- 
eral local  option  law  does  not  repeal  a  prior  special  local  option 
act  where  the  two  are  not  inconsistent  and  the  repealing  clause 


until  such  time  as  the  sense  of  the 
people  can  be  taken  in  the  manner 
prescribed  by  the  general  law  and 
that  until  that  time  it  may  pass  such 
law  as  will  authorize  the  sale  of  liq- 
uors in  localities  where  prohibition 
laws  have  been  in  force  or  may  pass 
a  law  prohibiting  the  sale  in  com- 
munities where  the  sale  of  liquors  has 
been  licensed.  Brown  v.  Common- 
wealth, 08  Ky.  652,  34  S.  W.  12. 
See  also  Commonwealth  v.  McCann, 
123  Ky.  247,  9-1  S.  W.  645,  constru- 
ing the  provision  of  the  constitution 
declaring  as  follows:  ''The  General 
shall  by  general  law,  pro- 
vide a  means  whereby  the  sense  of  the 
people  of  any  county,  city,  town,  dis- 
trict or  precinct  may  be  taken  as  to 
wmether  or  not  spirituous,  vinous,  or 
malt  liquors  shall  be  sold,  bartered  or 
loaned    therein,    or    the    sale    thereof 


regulated.  But  nothing  herein  shall 
be  construed  to  interfere  with  or  to 
repeal  any  law  in  force  relating  to 
the  sale  or  gift  of  such  liquors." 

31.  Ex  parte  Elliott,  49  Tex.  Cr.  R. 
108,  91  S.  W.  570. 

32.  Commonwealth  v.  Jarvell,  9 
Ky.  Law  Rep.  572,  5  S.  W.  703; 
State  v.  Yervell,  63  Md.   120. 

In  Kentucky  it  is  decided  that 
local  acts  were  not  repealed  by  the 
local  option  act  but  that  with  re- 
spect to  the  quantity  that  may  be 
sold  and  the  penalties  for  the  viola- 
tion of  the  act  the  courts  are  gov- 
erned entirely  by  the  local  option 
law  and  not  by  the  local  or  special 
acts.  Burdette  v.  Board  of  Council 
of  City  of  Danville  (Ky.  C.  A. 
1910),  125  S.  W.  275. 

33.  Boldt  v.  State,  60  Ark.  600,  31 
S.  W.  460. 


&  375]  LOCAL   OPTION    LAWS    GENERALLY.  ;_•; 

of  the  general  act  only  provides  for  the  repeal  of  laws  in 
with  it.88  Again  where  a  local  option  law  excepts  from  its  oper- 
ation localities  where  sales  are  prohibited  by  law  the  adoption  of 
local  option  in  a  township  located  inside  the  distance  from  a 
church  within  which  sales  are  prohibited  by  law  does  do1  operate 
to  abrogate  that  law.30  And  a  statute  making  it  unlawful  to  sell 
liquors  without  a  license  is  held  to  be  neither  repealed  nor  sus 
pended  by  the  adoption  of  local  option  as  it  is  unlawful  to  sell 
without  a  license  whether  local  option  prevails  or  not.37  Nor  will 
a  local  option  law  passed  in  pursuance  of  a  constitutional  pin- 
vision  authorizing  it  nullify  local  option  elections  held  prior  to 
the  adoption  of  such  provision  where  it  also  provides  that  ''noth- 
ing herein  shall  be  construed  to  interfere  with  or  to  repeal  any 
law  in  force  relating  to  the  sale  or  gift  of  such  liquor."  :;s  Again 
an  amendment  to  a  local  option  law  requiring  a  report  to  he  made 
by  druggists  of  all  sales  of  intoxicating  liquors  made  by  them  and 
which  docs  not  alter  the  prohibitory  features  of  the  older  act, 
applies  in  counties  where  local  option  is  in  force  without  its  being 
submitted  to  a  vote  of  the  people.39 

§  375.  Local  option  law  merely  suspends  prior  laws. 

Although  as  we  have  stated  in  the  preceding  section  there  are 
some  states  in  which  it  is  declared  that  the  adoption  of  local  option 
in  a  particular  locality  operates  as  a  repeal  of  prior  inconsistent 
laws  yet  the  general  rule  is  that  it  does  not  operate  as  a  repeal  in 


.•n.  Locke     v.     Commonwealth,    25  to    a    certain    county    which    permits 

Ky.  Law  Rep.  7<;.  7»  S.  W.  »•'">  t.  either   prohibition   or   the   making  of 

35.  McGruder  v.  State,  83  Ga.  filG,  sales  docs  nol   repeal  a   prior  general 

10  S.  E.  281.  tnv  tun. ■hiii;.;'  the  granting  <>i  licenses 

3«.  state     v.     Hollingsworth,     100  and   making  them   lawful  on  certain 

N.  C.  535,  6  S.  E.  417.  conditions. 

37.  State  v.  Smiley.  K>1  X.  C.  709,  :!s-  Stamper  v.  Commonwealth,  102 

7   S.   E.  004.     See   Bell    v.    State   !H  Ky.  3:!.  42  S.  W.  915. 

Ga.  227,  18   S.  E.  288,  holding  that  •'»>•  People  v.   Henwood,    123   Mich. 

a  special  local  option   law  applicable  317.  82  X.  W.  7a. 


128  LOCAL    OPTION    LAWS    GENERALLY.  [§   375 

the  strict  sense  of  that  word  but  rather  operates  as  a  suspension 
merely  of  such  prior  laws  during  the  time  that  local  option  re- 
mains in  force  in  that  locality.40  As  is  said  in  a  case  in  Florida 
there  is  a  material  difference  between  a  statute  being  repealed  or 
suspended,  in  that  a  repeal  removes  the  law  entirely  while  though 
a  law  is  suspended  it  still  exists  and  has  operation  in  every  re- 
spect  except  wherein  it  is  suspended.41  So  the  right  to  exemption 
from  consents  is  suspended  by  the  adoption  of  a  local  option  law 
and  revives  when  the  vote  is  reversed.42  And  in  a  case  in  Oregon 
it  is  said  that  a  vote  for  prohibition  does  not  operate  as  a  suspen- 
sion of  the  provisions  of  a  charter  of  a  city  in  authorizing  the 
issuance  of  licenses  but  is  rather  a  limitation  upon  the  city  charter 
and  the  powers  of  the  city  within  such  territory.43  And  where  an 
act  providing  for  local  option  also  contains  a  provision  as  to  con- 
ducting the  traffic  in  case  the  vote  is  against  it  such  provisions  are 
not  to  be  regarded  as  repugnant  but  one  will  be  regarded  as  sus- 
pended while  the  other  is  in  force.44     Where  an  election  is  illegal 

40.  Florida.— Cason     v.     State,     37  Texas.— Rathburn  v.  State,  88  Tex. 

Fla.  331,  20  So.  547;  Butler  v.  State,  281,  31   S.  W.   189;   Gibson  v.   State, 

25  Fla.   347,   6   So.   67.  34  Tex.  Cr.  218,  29  S.  W.  1085;  Kerr 

Georgia.— Tatum   v.    State,    79   Ga.  v.  Mohr,   47  Tex.   Civ.   1,   103  S.  W. 

176.  210. 

Indiana. — Garver  v.  State,  8  Blackf.  If  no  provisions  of  repeal. — An 

568.  election    resulting   in   a    vote   against 

Kentucky. — Commonwealth  v.  Hok,  the  sales  of  liquors  operates  to  sus- 
14  Bush  668 ;  Young  v.  Common-  pend  a  former  law,  where  the  act  pro- 
wealth,   14  Bush   161.  viding    for    local    option    contains    no 

Michigan. — People     v.     Wade,     101  provisions       repealing       such       law. 

Mich.  89,  59  X.  W.  438.  Hearn  v.  Brogan,  64  Miss.  334,  1  So. 

Mississippi. — Norton    v.    State,    65  246. 

Miss.    297,    3    So.    665;    Winterton   v.  41.  Mernaugh   v.   City   of   Orlando, 

State,  65  Miss.  238,  3  So.  735,  citing  41  Fla.  433,  27  So.  34.     Per  Marry.  J. 

Hearn  v.  Brogan,  64  Miss.  334,  1  So.  42.  People     ex     rel.     Sandman     v. 

246.  Brush,   41    Misc.   R.    (X.   Y.)    56,    S3 

Missouri. — State     v.     C raves,     135  X1.  Y.  Supp.  607. 

Mo.   App.    171.    115   S.    W.    1054;    Ex  43.  Baxter  v.   State,  49  Oreg.  353, 

parte  Swann,  96  Mo.  45.  9  S.  W.  10;  88  Pac.  677,  89  Pae.  369. 

State  v.   Beam,  51   Mo.  App.  368.  44.  Price   v.    Liquor    License   Com- 

New    York. — See  Vallance  v.  King,  missioners,  98  Md.  346,  57  Atl.  215. 
3  Barb.  5  is. 


fi   370J  LOCAL   OPTION    LAWS    GENERALLY.  429 

and  void  the  law  in  such  territory  of  course  remains  in  force  as 
it  was  prior  to  the  election.'"' 

§  376.  Effect  of  adoption  on  license  laws. 

The  rule  that  the  adoption  of  local  option  in  a  certain  locality 
operates  as  a  suspension  of  prior  inconsistent  Laws  applies  to  those 
laws  which  authorize  and  regulate  the  granting  of  licenses  and 
where  such  a  law  has  been  adopted  and  has  gone  into  effect  there 
is  no  authority  for  the  granting  of  a  license  in  such  locality  din- 
ing the  time  that  the  law  remains  in  force  and  consequently  no 
sale  can  be  authorized  except  when  the  statute  makes  certain  ex- 
ceptions.46    And  it  is  no  defense  to  an  indictment  for  violating 


45.  Ex  parte  Cox,  28  Tex.  App. 
537,  13  S.  W.  862. 

46.  Florida. — Bonacker  v.  State  ex 
rel.  McFarland,  42  Fla.  348,  29  So. 
321. 

Georgia. — Turner  v.  Mayor,  etc.  of 
Forsyth,  78  Ga.  G83,  3  S.  E.  649. 

Louisiana. — State  v.  Laborde,  119 
La.  410,  44  So.  15G;  Parish  v.  Camp- 
bell, 106  La.  464,  31  So.  49. 

Maryland. — Temmick  v.  Owing,  70 
Md.   246,   16   Atl.   719. 

Minnesota. — State  v.  Hanley,  25 
Minn.  429. 

North  Carolina. — State  v.  Smiley, 
101   N.  C  709,  7  S.  E.  904. 

I'<  nnsylvania. — Commonwealth  v. 
Meller,  811  Pa.  St.  127:  Ranch  v. 
Commonwealth,  78  Pa.  St.   190. 

Ti.ru.s-. — Ex  parte  Lynn,  19  Tex. 
App.  293. 

A  tax  law  is  rendered  inoperative 
in  a  county  l>;  the  adoption  of  a  lo- 
cal option  law  therein.  Haas  v. 
Remick,  31  Ohio  C.  C.  591.  The 
court   said: 

"The  right  to  traffic  in  intoxicat- 
ing liquors  is  a  common  law  righl 
possessed  by  the  people — a  property 
right,  a  lawful  subject  of  taxation, 
and  recognized  as  such  in  this  state. 


To  enforce  payment  of  such  tax  in 
any  such  case  against  an  individual, 
two  facts  must  exist,  viz.,  the  right 
to  carry  on  the  business  where  lo- 
cated, and  the  ownership  of  such 
right  in  the  party  assessed;  and 
when  the  state  has  lawfully  abolished 
such  right  and  ownership,  how  can 
it  lawfully  impose  a  tax  thereon? 

The  state,  in  the  Dow  law,  recog- 
nized those  rights,  and  heavily  taxed 
the  persons  engaged  in  the  exercise 
of  those  rights;  but  now.  through 
the  enforcement  of  the  Rose  law,  it 
has  abolished  those  rights  in  most  of 
the  state,  and  made  their  exercise  a 
misdemeanor. 

We  say  the  state  has  done  this  as  the 
Rose  law  is  a  general  law,  applicable 
to  the  whole  state,  the  state  being 
composed  of  counties,  and  they  are 
component  parts  of  the  state,  and 
when  the  legislature  authorized  its 
constituent     parts    to    abolish     such 

right  3,  and   made  the 

a   criminal   offense  againsl 
itself,  certainly  the  abolil  ion  o 
rights  in  any  county  i>  in  effect   the 
act   of,  and  binding  in  every  respect 
upon  the  state. 

Suppose  every   county   in  the  state 


430  LOCAL    OPTION    LAWS    GENERALLY.  [§   3JG 

the  local  option  law  that  since  the  commission  of  the  offense  the 


was  '  dry '  under  the  operation  of 
the  Rose  law,  where  could  the  Dow 
law  be  in  force  and  effect?  Would 
not  the  Rose  law  render  it  inoper- 
ative and  in  ell'ect  repeal  it?  And  if 
hy  would  it  not  have  the  same 
effect  now  in  the  '  dry  '  counties,  al- 
though all  are  not  '  dry.' 

In  Ashtabula  county  at  the  time  in 
question,  and  now,  to  engage  in  such 
traffic  was  and  is  a  criminal  offense 
against  the  state,  and  how  is  it  pos- 
sible that  an  older  law  could  also  be 
in  force  and  effect  there,  which  recog- 
nized and  permitted  the  right  in  the 
people  to  carry  on  such  traffic  by 
the  imposition  of  a  yearly  tax. 

The  statute  expressly  declares  the 
tax  is  imposed  upon  the  '  business  of 
trafficking  in  spirituous,  vinous,  malt 
or  other  intoxicating  liquors,'  and 
hence  it  expressly  recognizes  the 
right  to  carry  on  such  business,  and 
is  a  permit  to  do  it,  and  this  is  made 
more  manifest  by  the  provision  in 
the  statute  that  if  the  party  does  not 
begin  the  traffic  until  after  the  day 
the  yearly  tax  is  to  be  assessed  under 
the  statute,  to  wit,  the  fourth  Mon- 
day in  May,  the  tax  is  to  be  appor- 
tioned accordingly;  as  for  instance, 
if  the  traffic  is  not  begun  until  six 
months  after  the  fourth  Monday  of 
May,  the  tax  is  to  be  but  one-half  of 
the  yearly  tax ;  or,  if  such  party  be- 
gan the  business  at  the  beginning  of 
the  year,  and  pays  the  tax,  and  after- 
wards retires  from  the  business  be- 
fore the  end  of  the  year  there  shall 
be  returned  to  him  a  proportionate 
share  of  such  tax;  but  in  no  event 
shall  the  tax  to  be  paid,  or  retained, 
be  less  than  $200. 

It  is  apparent,  therefore,  that  the 
statute  permits,  and  makes  it  lawful 
for  such  person  to  engage  in  and 
carry   on   such  traffic   for   the   length 


of  time  for  which  he  pays  the  tax. 

If,  therefore,  both  these  statutes 
are  lawfully  operative  in  a  '  dry ' 
county,  then  the  persons  engaged  in 
such  traffic  therein  can  be  compelled 
to  pay  the  tax  and  at  the  same  time 
be  prosecuted  and  fined  for  the  sell- 
ing, as  Doering  was  in  this  instance, 
and  all  of  their  liquors  taken  from 
them   and   confiscated. 

These  statutes  are,  therefore,  clearly 
in  conflict  and  the  latter  one  makes 
the  former  one  inoperative  in  '  dry ' 
counties."     Per   Laubie,   J. 

Under  the  North  Carolina 
statute  after  the  town  has  voted  pro- 
hibition a  liquor  seller  has  only  six 
months  to  close  out  his  stock  if  his 
license  remains  so  long  in  force.  Mc- 
Intyre  v.  Asheville,  146  N.  C.  475, 
59   S.  E.   1007. 

In  Kentucky  it  is  decided  that 
where  a  person's  license  has  not  ex- 
pired when  local  option  goes  into  ef- 
fect the  law  is  not  operative  as  to  him 
until  after  the  expiration  thereof. 
Shehan  v.  Louisville  &  N.  R.  Co., 
125  Ky.  478,  101  S.  W.  380. 

Right  of  wholesalers  to  sell  in 
local  option  district  under  Ky.  act 
March  22,  1904,  see  New  South  Brew- 
ing &  Ice  Co.  v.  Commonwealth,  29 
Ky.  Law  Rep.  87.3,  9G  S.  W.  805. 

Illegal  sale — right  to  recover 
payment. — Where  a  sale  of  beer  is 
made  with  knowledge  that  the  pur- 
pose of  the  buyer  is  to  retail  the  same 
in  a  local  option  district  in  viola- 
tion of  the  law  and  the  seller  aids  in 
the  sales  and  the  moneys  for  the  pay- 
ment of  the  liquor  is  to  be  derived 
from  such  illegal  sales,  it  is  decided 
that  there  can  be  no  recovery.  Dallas 
Brewery  v.  Holmes  Bros.  (Tex.  Civ. 
App.    1908),    112   S.   W.    122. 

The  sale  by  a  distiller  to  his 
partner  of  his  interest  in  their  dis- 


§  377]  LOCAL   OPTION    LAWS    GENERALLY.  431 

district  has  voted  in  favor  of  the  Bale  of  liquor.47     But  where  by 
statute  a  person  might  sell  mall  liquor  upon  paymenl  men 
privilege  tax,  a  distinction  being  made  between  such  liquors  and 
vinous  and  spirituous  liquors  and  a  local  option  law  pn  -uch 

distinction  a  person  by  the  paymenl  of  a  privilege  tax  may  .still 
sell  malt  liquors,  and  Deed  nol  obtain  a  license.48  And  in  a  re- 
cent case  in  Kentucky  it  is  decided  that  though  such  a  statute  for- 
bids the  sale  of  ki  spirituous,  vinous,  or  malt  liquors  "  in  a  terri- 
tory in  which  local  option  has  been  adopted  it  is  not  violated  by 
a  sale  of  malt  liquors  which  contains  such  a  small  percentage  of 
alcohol  that  it  may  be  drank  in  any  quantity  without  having  any 
intoxicating  effect.49 

§  377.  Effect  of  adoption — Resident  of  local  option  territory  may 
purchase  in  wet  territory  for  own  use. 
As  we  have  stated  in  one  of  the  earlier  sections  though  a  state 
may  prohibit  the  traffic  in  intoxicating  liquors  yet  it  can  not  pre- 
vent one  from  having  such  liquors  in  his  possession  for  his  own 
use.50  And  this  principle  applies  to  one  who  is  a  resident  of  a 
local  option  district.  Such  a  person  may  either  by  himself  or  an 
agent  go  into  territory  where  local  option  is  not  in  force  and  bring 
such  liquor  into  the  local  option  district  provided  he  keeps  it  for 
his  own  use.  And  if  the  purchase  is  made  by  duly  appointed 
agents  the  latter  will  not  be  guilty  of  a  violation  of  a  statute  for- 
bidding the  "furnishing"  of  liquor  in  such  territory.  This  con- 
clusion is  reached  in  a  recent  case  in  Ohio  in  which  it  was  held 

tillery  is  not  a  violation  of  the  local  menoed  another  election   i<  held   does 

option     law.       Stamper    v.    Common-  not   repeal   the   prior   election   to   the 

wealth,  31  Ky.  Law  Rep.  707.  103  S.  extent    that    the    prosecution    should 

\Y    -2Sf>.  be  midcr  the  later  election. 

■»7.  Commonwealth    v.    Overly.    107  18.   Boswell  v.  State,  70  Miss.  395, 

Ky.    1G9,    53    S.    \Y.    36.      See    also  12  So.  440. 

Holmes    v.    State,    55    Tex.    Cr.    331,  49.  City  of  Bowling  Green  v.  Mc- 

116  S.  W.  571,  holding  that  the  fact  Millen,     Ky.   1910),  122  S.  \Y.  823. 
that     after    a     prosecution     under    a  CO.  See  §  85  herein, 

local   option   election    has   been    com- 


432 


LOCAL    OPTION    LAWS    GENERALLY. 


[§  377 

proper  to  charge  the  jury  in  substance  that  it  was  not  a  violation 
of  the  statute  for  a  person  in  a  "  dry  "  county  to  go  into  a  "  wet  " 
county  to  purchase  liquor  in  any  quantity  for  his  own  use,  to  be 
used  as  a  beverage  and  that  such  a  person  may  under  this  statute 
not  only  go  into  a  "  wet  "  county  and  purchase  intoxicating  liquor 
in  any  quantity,  to  be  used  as  a  beverage  by  himself  in  a  "  dry  " 
county,  but  that  he  may  do  so  by  another,  whom  he  has  in  good 
faith  constituted  his  agent  for  that  purpose.51 


51.  State  v.  Lynch,  81  Ohio  St. 
173,  90  N.  E.  935,  55  Ohio  Law 
Bull.  Supp.  75,  followed  in  State  v. 
Wirick,  81  Ohio  St.  177,  90  N.  E. 
937.  The  court  said  per  Davis,  J. : 
"  The  prosecuting  attorney  excepted 
to  the  charge,  and  although  the  de- 
fendant was  found  guilty  by  the  jury, 
and  was  sentenced  by  the  court,  the 
prosecuting  attorney  has  brought  the 
case  here,  as  provided  by  Revised 
Statutes,  Sections  7305,  730G,  7307, 
7308,  for  an  answer  to  the  sole  ques- 
tion, as  stated  by  himself:  'Can  a 
person  in  dry  territory  receive  money 
from  another,  and  go  into  wet  terri- 
tory, purchase  intoxicating  liquors 
with  the  money,  and  deliver  it  to  the 
person  who  furnishes  the  money,  to 
be  used  by  him  as  a  beverage,  and  not 
be  guilty  of  furnishing  as  the  term  is 
used  in  this  statute?' 

The  prosecuting  attorney  argues  for 
a  negative  answer  to  this  question ; 
and  his  argument,  in  brief,  is  this: 
that  the  word  'furnish'  in  its  or- 
dinary and  generally  accepted  meaning 
signifies  to  'provide'  or  'supply.' 
Yf't  if  we  substitute  either  of  these 
alleged  equivalent  words  for  the  one 
used  in  the  statute,  the  application 
of  the  statute  to  the  facts  of  this  case 
i-  not  made  any  clearer  than  when  we 
consider  it  with  the  legislature's  own 
chosen  word,  '  furnish.'  In  fact,  the 
abstract  meaning  of  words  rarely  af- 
ford- decisive  aid  in  determining  the 


construction  of  a  document  or  a  stat- 
ute. When  attempting  to  arrive  at 
the  meaning  and  specific  intent  of  a 
given  phrase  or  sentence,  we  are  gen- 
erally obliged  to  consider  words  in 
their  concrete  use,  having  regard  to 
the  general  purpose  which  the  drafts- 
man had  in  view,  together  with  any 
other  circumstances  which  may  aid  us 
in  attaining  his  mental  point  of  view. 
Now  in  the  study  of  this  statute 
(99  O.  L.  35-38),  and  especially  of 
its  title  and  Section  2,  which  is  di- 
rectly under  review  in  this  proceed- 
ing, it  is  very  clear  that  it  is  aimed 
at  the  repression  of  "  the  evils  result- 
ing from  the  traffic  in  intoxicating 
liquors,"  and  the  punishment  of  deal- 
ers conducting  such  traffic.  The  sig- 
nificant language  of  Section  2  is  as 
follows :  '  Whoever  *  *  *  violates 
any  of  the  provisions  of  this  act  or 
in  any  manner  directly  or  indirectly, 
sells,  furnishes,  or  gives  away  or 
otherwise  deals  in  any  intoxicating 
liquors  as  a  beverage,'  etc.  The  stat- 
ute seeks  to  prohibit  the  traffic,  or 
dealing,  in  intoxicating  liquors  in 
counties  in  which  a  majority  of  the 
electors  have  voted  '  in  favor  of  pro- 
hibiting the  sale  of  intoxicating  liq- 
uors ;  '  and  therefore  it  provides  that 
not  only  those  who  sell  intoxicating 
liquors,  but  also  those  who  furnish, 
give  away,  or  otherwise  deal  in  them 
in  evasion  of  the  law  against  the  sale 
of  liquors,  shall  likewise  be  guilty  of 


§  378]  LOCAL  OPTION    laws   GENERALLY.  j:;:; 

§  378.  Binding  effect  of  vote  on  entire  subdivision. 

Where  by  a  vote  the  sale  of  liquors  has  been  prohibited  in  a 
certain  locality  a  sub-division  thereof  cannol  by  a  separate  vote 
under  the  same  law  permit  the  sale  of  liquor  within  the  Limits  of 
tho  subdivision.5-     And  the  result  is  binding  upon  all  within  the 


a  misdemeanor.  Tliis  was  the  con- 
struction, and  no  more,  which  was 
given  to  the  word  '  furnish  '  in  State 
v.  Munson,  25  Ohio  St.,  381;  State 
v.  Freeman,  27  Vt.  520;  and  People 
v.  Neumann,  85  Mich.  98,  48  N.  W. 
290,  cited  by  the  prosecuting  at- 
torney. 

For  the  foregoing  reasons  we  are 
unable  to  accept  the  construction  of 
the  statute,  which  is  claimed,  on  the 
part  of  the  state  to  justify  its  con- 
tention that  the  charge  of  the  court 
in  this  case  was  erroneous;  and  we 
may  add  a  few  other  considerations 
leading   to   the   same   conclusion. 

Admittedly  Bennett  could  have  gone 
in  person  to  another  county  where  the 
traffic  in  intoxicating  liquors  was 
not  prohibited,  and  there  could  have 
bought  liquors  for  his  own  use  in  any 
quantity  and  could  have  transported 
them  to  the  county  of  his  residence, 
where  the  traffic  was  prohibited,  and 
could  have  there  consumed  them.  We 
frankly  confess  that  we  are  entirely 
unable  to  understand  why  one  may 
not  lawfully  do  by  the  agency  of  an- 
other, thai  which  lie  may  lawfully  do 
himself.  The  prosecuting  attorney 
contends  thai  the  maxim.  'Qui  focit 
per  (ilium,  fat-it  per  se,'  cannol  apply 
in  criminal  law.  Why  not,  in  a  case 
like  this?  There  can  be  no  aiders  or 
abettors  where  there  is  no  crime. 
When  the  liquor  was  purchased  and 
paid  for,  in  a  place  where  the  traffic 
was  not  prohibited,  it  thereupon  be- 
came Bennett's  property.  The  defend- 
ant did  not,  and  could  not,  sell  or 
give  it  to  Bennett,  for  it  was  not  his 


to  sell  or  give  away.  For  the  de- 
fendant to  carry  and  deliver  to  Ben- 
nett his  own.  was  not  'furnishing' 
it  to  him.  If  it  be  conceded  thai 
the  mere  delivery  to  the  purchaser 
under  such  circumstances  constitutes 
'furnishing'  within  the  meaning  of 
the  statute,  then  one-  who  has  in  his 
house  in  '  dry '  territory,  liquor 
which  he  has  lawfully  obtained,  makes 
his  servant  or  member  of  his  family 
liable  to  indictment  under  this  stat- 
ute, whenever  in  obedience  to  his  re- 
quest some  of  it  is  brought  to  the 
owner.  In  the  absence  of  a  clear  ex- 
pression to  that  effect,  we  are  not  will- 
ing to  adopt  such  an  extreme  con- 
struction." 

52.  Colorado. — Schwartz  v.  People, 
(Colo.  App.  1909),  104  Pac.  92. 

Kentucky. — Commonwealth  v.  King, 
86  Ky.  436,  6  S.  W.  124:  Hancock  v. 
Bingham,  31  Ky.  Law  Rep.  127,  102 
S.  W.  341;  Tousey  v.  Stites,  2::  Ky. 
Law  Pep.  1738,  66  S.  W.  277. 

Louisiana. — State  v.  Lahorde,  119 
La.  410,  44  So.  156;  Police  Jury  of 
Avoyelles  v.  Town  of  Mansura,  119 
La.  300,  44  So.  23;  State  v.  Jackson, 
105  La.  436,  29  So.  870;  Police  Jury 
of  De  Soto  Parish  v.  Town  of  Mans- 
field, 49  La.  Am.  796,  21   So.  598. 

Montana. — In  re  O'Brien,  29  Mont. 
530,  75   Pac.   196. 

\.  w  York.-  Killinger  \ .  I  llemenl . 
131  App.  Div.  161,  115  X.  V.  Supp. 
•107. 

Oregon. — Baxter  v.  State,  49  Oreg. 
353,  B8   Pac.  677,  89  Pac.  369. 

y,  ,,,s ._Fox  v.  State.  53  Tex.  Cr. 
150,    109   S.    W.    370.      Ex   parte   El- 


434  LOCAL    OPTION    LAWS    GENERALLY.  rj   37$ 

territory  covered  by  such  election  though  the  result  in  some  town 
or  precinct  may  have  been  different  from  the  general  result.53  So 
where  a  justice's  precinct  has  adopted  local  option,  it  applies  to 
the  whole  precinct  and  subdivisions  thereof  cannot  by  holding 
elections  nullify  the  law  as  to  such  precinct.54  And  such  a  vote  in 
a  parish  controls  the  towns  therein  in  Lousiana.55  And  a  vote  in 
a  ward  likewise  controls  a  precinct  in  such  ward.56  So  though  the 
vote  in  a  hamlet  within  the  boundaries  of  a  town  authorized  the 
sale  of  liquor  yet  when  subsequently  upon  a  submission  of  the 
question  to  the  electors  of  the  town  the  vote  was  for  no  license, 
this  was  held  to  determine  the  question  for  the  entire  town  and  to 
prohibit  the  sale  of  liquors  in  the  hamlet.57  But  while  a  vote  taken 
by  a  county  which  results  against  the  sale  of  liquors  is  binding 
upon  all  subdivisions  thereof  during  the  time  prescribed  by  law  yet 
where  the  statute  permits  a  vote  by  subdivisions  thereof  such  a 
vote  may  be  taken  after  the  expiration  of  the  time  specified.58 
And  a  county  is  not  precluded  from  taking  a  vote  within  the  period 
prescribed  by  the  fact  that  a  subdivision  thereof  has  held  an 
election.59  And  in  Kentucky  it  is  decided  under  the  laws  in 
force  there  that  if  a  county  or  city  vote  wet  and  a  precinct  therein 
has  previously  voted  dry  the  precinct  controls  for  itself  but  if  the 

liott,  44  Tex.  Cr.  575,  72  S.  W.  837;  54-  Ex    parte    Elliott,   44   Tex.    Cr. 

Adams   v.   Kelley,   17   Tex.   Civ.   App.  575.  72  S.  W.  837. 

479,  44  S.  W.  529;   State  v.  Harvey,  55.  State  v.  Laborde,  119  La.  410, 

11  Tex.  Civ.  App.  691,  33  S.  W.  885.  44  So.  156;   Police  Jury  of  Avoyelles 

Compare  Griffin  v.  Tuekey  (Tex.  S.  C.  v.    Town    of   Mansura,    119    La.    300, 

1909),  118  S.  W.  635;  Kidd  v.  Twett,  44  So.  23. 

28  Tex.  Civ.  App.  618,  68  S.  W.  310;  56.  Schwartz      v.      People       (Colo. 

Woodlief  v.  State,  21  Tex.  App.  412,  1000).   104  Pac.  92. 

2    S.   W.   812,   citing   Whisenhunt    v.  57.  Killinger  v.  Clement,  131  App. 

State,    18   Tex.   App.   491.  Div.    (X.   Y.)    401,    115   N.   Y.   Supp. 

A    special    charter    will    not    ex-  407. 

empt  a  town  or  city  from  the  effect  58.  Commonwealth   v.   Bottoms,   22 

of   such   vote   in  a   division   of  which  Ky.    Law    Rep.    410,    57    S.    W.    493, 

it  is  only  a   part.     Fox  v.   State,   53  followed  in  Commonwealth  v.  Nelson, 

Tex.  Cr.  150,  109  S.  W.  370.  22  Ky.  Law  Rep.  414,  S.  W. 

53.  Ex    parte    Fields,    39    Tex.    Cr.  59.  Smith  v.  Patton,   103  Ky.  444, 

50,  46  S.  W.   1127.  45   S.  W.   459. 


§   379]  LOCAL    OPTION    LAWS    GENERALLY.  435 

precinct  votes  againsl  prohibition  the  question  is  left  as  it  was 
before  the  vote  was  taken  and  a  sul  7ote  of  the  town  or 

city  which  includes  the  precinct  in  favor  of  prohibition  controls 
the  whole  town  or  city.60  And  in  Texas  an  (lection  held  for  an 
entire  county  and  which  is  against  local  option  is  held  qoI  to  re- 
peal local  option  in  a  subdivision  of  such  county  which  had  previ- 
ously adopt*  (1  local  option.61 

§  379.  Same  subject — where  boundaries  changed. 

A  subsequent  change  of  boundaries  of  a  subdivision  does  not 
affect  the  operation  of  a  local  option  law  adopted  therein,  the 
boundaries  being  regarded  for  the  peroid  named  as  those  at  the 
time  of  the  adoption  of  the  law.02  So  though  a  part  of  the  subdi- 
vision in  which  local  option  is  in  force  is  annexed  to  another  subdi- 
vision the  local  option  law  has  been  held  to  remain  in  force  in  the 
part  so  annexed,  until  the  voters  of  the  original  territory  have  n 
pealed  it.63  And  where  a  local  option  law  has  been  adopted  in  a 
certain  territory,  it  is  decided  that  it  can  only  be  changed  by 
action  of  the  voters  and  that  the  legislature  can  not  repeal  the  law 
as  to  such  territory,64  and  cannot  nullify  the  law  as  to  a  part  of 
that  territory  by  creating  a  new  school  district  which  includes 


00.  Board  of   Trustees  of  Town   of  does  not  change  the  operation  of  the 

New    Castle    v.    Scott,    30    Ky.    Law  law  on  the  old  distriet  as  left  by  such 

Rep.   804,    101    S.   W.   044.     Examine  act. 

O'Neal    v.   Miliary.   30   Ky.   Law  Rep.  Where    a    town    is    situated    in 

888,  101   S.  W.  951  :   K»  urn m  v.  Black-  two     counties     and     after    one     has 

burn.  31   Ky.  Law  Rep.   1256,   104  S.  voted     prohibition      for     the     em  in' 

W.  968.  county  of  which  Buch  town  is  an  in- 

61.  Aaron    v.    State.    34    Tex.    Or.  corporation  the  other  county  can  not 

103,  20  S.  W.  207.  act    contrary  to   such   vote  as  to  the 

02.  Prestwood    v.    State,    ss    Ala.  part    of    the    town    located    therein. 

235,  7  So.  259;  Higgina  v.  Slate.  64  Croxton  v.  Truesdell,  7:.  s.  C.  418,  56 

Md.    410,    1    Atl.    876.      See   Jones    v.  S.    K.    45. 

State.  07  Md.  256,  10  Atl.  216,  hold-  03.  /.;.,.  ,,„,-,<■   Pollard,   51   Tex.   Cr. 

ing   that    an    act    of   the    legislature  488,  103  s.  \Y.  878. 

cutting  ofT  a  portion  of  a  district   in  ,:l-  Ex  parte   Elliott,   44   Tex.   Cr. 

which  local  option  has  been   adopted  575,  72  S.  W.  837. 
and  forming  it    into   another   district 


436  LOCAL    OPTION    LAWS    GENERALLY.  [§   380 

such  part.65  And  it  cannot  by  detaching  a  part  of  a  justice's  pre- 
cinct and  adding  it  to  another  justice's  precinct  affect  local  option 
in  the  part  detached.66  So  a  court  having  authority  to  change  the 
boundaries  of  a  district  for  certain  purposes  cannot  change  it  so 
as  to  nullify  the  effect  of  a  local  option  law  adopted  in  such 
locality.67  But  in  Kentucky  it  has  been  decided  that  where  after 
the  adoption  of  a  local  option  act  the  legislature  by  an  act  incorpo- 
rating a  town  within  such  district,  conferred  power  upon  the 
trustees  of  the  town  to  regulate  the  sale  of  spirituous,  vinous  and 
malt  liquors,  a  license  granted  by  such  trustees  to  a  person  to  sell 
liquors  within  the  town  relieved  him  from  the  penalties  of  the  local 
option  act.68 

§  380.  Statement  of  consent — Iowa. 

By  a  statute  in  Iowa  it  has  been  provided  that  before  liquor 
may  be  sold  in  towns  and  cities  a  statement  of  consent  signed  by 
a  certain  per  cent  of  the  votes  must  be  filed  and  acted  upon  affirm- 
atively by  the  board  of  supervisors.69  Under  this  statute  where  a 
statement  of  consent  is  signed  by  the  requisite  number  of  voters 
of  the  county  and  the  board  has  found  thereon,  it  has  no  further 
function  relative  to  the  sale  of  liquor  in  any  town.70  But  an  ap- 
peal lies  from  a  finding  by  the  board  as  to  the  sufficiency  of  the 
statement  of  consent  but  such  appeal  is  not  triable  by  a  jury.71 

65.  Ex  parte  Elliott,  44  Tex.  Cr.  signed  by  majority  of  electors  under 
575,  72  S.  W.  837.  Iowa  code  §  2449.     See  Tuttle  v.  Poe- 

66.  Oxley  v.  Allen   (Tex.  Civ.  App.       chert  (Iowa  1909),  121  N.  W.  1057. 
1908),  107  S.  W.  945.  The   provision   as   to   revocation   of 

67.  Medford  v.  State,  45  Tex.  Cr.  consent  upon  a  petition  "signed  by 
180,  74  S.  W.  768.  a    majority    of    the    voters  *  *  *  as 

68.  Commonwealth  v.  Lemon,  25  shown  at  the  last  general  election  " 
Ky.  Law  Rep.  522,  76  S.  W.  40.  is  to  be  construed  as  meaning  a  ma- 

60.  Schuneman     v.     Sherman,     118  jority    of    those    who    actually    voted 

Iowa  230,  91  N.  W.   1064;   McConkie  at    such    election    and    not    of    those 

v.    District   Court   of    Cedar    County,  who   were   qualified   to   vote   but   did 

117  Iowa  334,  90  N.  W.  716;   Cam-  not  do  so.     Mills  v.  Hallgreen   (Iowa 

eron  v.  Fellows,  109  Iowa  534,  80  N.  1910),  124  N.  W.   1077. 
YV.  567.  70.  Meyer  v.  Hobson,  116  Iowa  349, 

Revocation   in   a   town   of  permit  90  N.  W.  85. 


§380]  LOCAL   OPTION    I.aws    GENERALLY.  i;;7 

The  mere  fad  thai  the  poll  books  and  statemenl  of  consenl  for  the 
sale  of  liquor  were  temporarily  removed  from  the  custody  of  the 
auditor  for  the  purposes  of  inspection,  thus  giving  an  opportunity 
to  make  changi  a  therein,  will  not  in  the  absence  of  a  showing  that 
changes  were  in  fact  made,  render  them  inadmissible  on  an  issue 
as  to  the  sufficiency  of  the  statement  of  consent.72  But  where  in 
a  statement  of  consent  to  a  sale  of  liquors  in  a  town  there  is  a 
name  which  is  different  from  that  appearing  upon  the  poll  books, 
parol  evidence  is  not  admissible  to  show  that  the  person  who  signed 
the  statement  of  consent  voted  at  a  preceding  election  though 
under  a  different  name.73  Under  a  statute  forbidding  a  canvas- 
sing of  a  statement  of  consent  more  than  once  in  the  same  year 
a  second  statement  may  be  filed  where  the  first  one  is  withdrawn 
before  acted  upon.74 


71.  Green  v.  Smith,  111  Iowa  183, 
82  N.  W.  448. 

The  doctrine  of  election  of  remedies 
applies  where  a  party  has  two  or 
more  inconsistent  remedies  for  the 
same  wrong  and  not  where  he  has 
but  one  available  remedy  and  mis- 
takenly pursues  another  which  is  not 
available  and  hence  the  prosecution  of 
certiorari  proceedings  to  test  the  va- 
lidity   of   the   canvas   of    a    statement 


of  consent  to  the  sale  of  liquor  will 
not  preclude  an  appeal  from  the  ac- 
tion of  the  board.  Moon  v.  Hart- 
such,  137  Iowa  236,   114  N.  W.  1043. 

72.  Wilson  v.  Bohstedt,  135  Iowa 
451,   110  N.  W.  898. 

73.  Wilson  v.  Bohstedt,  135  Iowa 
451.  110  X.  W.  898  -,  Porter  v.  Butter- 
field,   116  Iowa   725.  89   \".   \V.   199. 

74.  in  re  Intoxicating  Liquors,  120 
Iowa  G80,  95  N.  W.  194. 


|_38  LOCAL    OPTION    ELECTIONS. 


CHAPTEK  XVII. 

LOCAL  OPTION  ELECTIONS. 

SECTION  381.  As  to  the  petition  generally. 

382.  Sufficiency  of  petition. 

383.  Petition — as  to  signers  of. 

384.  Petition — presumption  as  to  signers — burden  of  proof. 

385.  Petition — duty  of  officials  as  to  determining  sufficiency  of  sig- 

natures. 

386.  Election — order  for  generally. 

387.  Election — order  for  need  not  state  exceptions  as  to  sales. 

388.  Election — order  for — errors  and  omissions  in. 

389.  Election — order  for — designating  locality  in. 

390.  Order — record  as  to. 

391.  Notices  of  election — publication  and  posting  of  generally. 

392.  Same  subject — manner  and  mode  of  publication. 

393.  Same  subject — presumption  as  to — burden  of  proof. 

394.  Effect  of  irregularities  in  connection  with  preliminaries  to  elec- 

tion. 

395.  Election — provisions  as  to  time  of  holding  of. 

39G.  Same  subject — time  prescribed  with  reference  to  another  election. 

397.  Election — manner   of  holding — generally. 

398.  Same  subject  as  to  the  election  officials. 

399.  Same  subject — as  to  the  hours  polls  are  open. 

400.  Same  subject — as  to  the  voters. 

401.  Same  subject — as  to  the  ballots  and  ballot  boxes.    . 

402.  As  to  the  ballots  continued. 

403.  Returns  of  election — certification. 

404.  Order   declaring  result  of  election — presumption   as   to   prelim- 

inary steps. 

405.  Sufficiency  of  order  declaring  result. 

406.  Same  subject — errors  in  connection  with. 

407.  Same  subject — record  as  to. 

408.  Result  of  election  where  statute  requires  publication  of. 

409.  Result  of  election — publication  for  four  successive  weeks. 


§  381]  LOCAL    OPTION    ELECTIO  139 

Section  410.  Result  of  election    statute  silent  as  to  time  or  manner  <>f  pub- 
lieai  ion. 

411.  Resull   of  t'leetion — presumption  and  evidence  as  to  publication. 

412.  Contest  of  election — nature  of  ri  ates. 

413.  Contest  of  election — proceedings. 

414.  Who    may    contest    election. 

415.  Resubmission  of  quest  ion. 

41<i.  Resubmission  of  question  continued — procedure. 

417.  Conclusiveness   of   declaration   of   result — collateral   attack. 

418.  Judicial  notice  of  adoption — necessity  of  proof  of. 

419.  Proof  of  adoption  of  local  option — sufficiency  of. 

Sec.  381.  As  to  the  petition  generally. 

A  petition  to  give  jurisdiction  must  contain  all  the  averments 
required  by  statute.1  And  where  the  petition  for  an  election  is 
not  in  compliance  with  the  statute  all  proceedings  based  thereon 
are  void.2  And  no  jurisdiction  to  order  an  election  is  acquired 
and  an  election  in  such  a  case  is  a  nullity.3  The  petition  must  be 
for  an  election  authorized  by  statute  and  not  being  responsive  to 
the  statute  a  prohibition  law  in  force  in  such  territory  will  not 
be  regarded  as  repealed.4  And  it  must  be  shown  by  the  state  in 
a  prosecution  for  a  violation  of  the  local  option  law  that  the  peti- 
tion upon  which  the  election  was  based  was  a  legal  one.5  Provis- 
ions as  to  the  time  of  filing  of  the  petition  must  be  complied  with.6 


i.  Tally  v.  Grider,  66  Ala.  119.  R.    (X.    Y.)    .134,    115    N.    V.    Supp. 

Want    of    acknowledgment    of  269. 

execution. — Though    a    certificate   to  2.  people  c.r  rel.  Barth  v.  Board  of 

a  petition   requesting   the  submission  Town    Canvassers,    32    Misc.    R.    (N. 

to  the  electors  of  a  town  of  the  local  Y.)    123,  66  X.  Y.  Supp.  199. 

option    questions    under    the    Liquor  •"••  Akin  v.  State,  11  Tex.  App.  142. 

Tax  Law  which  states  thai   the  peti-  •*.  Reynolds  v.  Commonwealth,  106 

tioners  signed  it  before  the  officer  bul  Ky.  37,  49  S.  W.  969. 

fails  to  state  thai  they  acknowledged  •*•■  Carries    v.    State,    23    Tex.    App. 

it  is  fatally  defective  yet  a  certificate  449,  5  S.  W.  133. 

which  states  that  they  acknowledged  6.  McMullen    v.    Berean,    29    Misc. 

its   execution   is   sufficient,   though    it  R.  (N.  Y.)  443,  60  N.  Y.  Supp.  578. 

fails    to    state    that     they    signed    it,-  When     petition     regarded     as 

since     execution     comprehends     sign-  filed. — When   a   petition   is   presented 

ing.     Matter  of  Livingston,  62  Misc.  to   the   proper  official  with  a   request 


440 


LOCAL    OPTION    ELECTIONS. 


[§  381 

But  a  petition  is  presumed  after  election  to  have  been  duly  and 
properly  recorded.7 


that  such  petition  be  filed,  the  peti- 
tion in  contemplation  of  law  is  filed; 
To  file  a  paper  is  to  deposit  it  with 
the  proper  custodian  for  filing,  record 
or  custody  as  provided  by  law.  The 
failure  to  mark  thereon  the  word 
'  Filed '  or  to  write  t>hereon  the 
proper  official  designation  of  the  offi- 
cer does  not  destroy  the  filing  or 
prove  that  such  paper  was  not  filed: 
So  though  the  law  made  it  the  duty 
upon  the  presentation  of  a  local  op- 
tion petition  to  a  certain  official  for 
him  to  write  after  his  name  the 
word  '  Auditor '  and  instead  of  so 
doing  he  wrote  the  word  '  clerk '  it 
was  decided  that  the  petitioners  were 
not  deprived  of  their  rights  under 
the  law,  the  indorsement  being  re- 
garded as  evidence  of  the  filing  and 
not  a  part  of  it.  Accordingly  it  was 
hold  that  the  trial  court  committed 
no  error  in  permitting  such  indorse- 
ment to  be  corrected  in  accordance 
with  the  facts.  O'Connor  v.  Board 
of  Commissioners  of  Bear  Lake 
County    (Ida.   1909),  105  Pac.  560. 

In  Ohio  it  has  been  decided  that 
under  §  2  of  act  98  0.  L.  G8,  a  peti- 
tion under  section  two  may  be  filed 
at  any  time  after  two  years  from  the 
filing  under  section  one  but  that  the 
decision  of  the  mayor  under  section 
two  cannot  take  effect  until  two  years 
after  his  decision  under  section  one. 
Thomas  v.  Markbreit,  31  Ohio,  C.  C. 
335.     The  court  said  per  Giffen,  J. 

"  That  part  of  Sec.  2  applicable  to 
the  question  is  as  follows: 

"The  petition  provided  for  in  this 
section  shall  not  be  filed  until  after 
two  years  or  more  shall  have  elapsed 
after  the  filing  of  the  petition  pro- 
vided  for  in  Sec.  1  of  this  act.' 

While  it  is  plain  that  the  provi- 
sion permits  a  filing  of  a  petition  at 


any  time  after  two  years  from  the 
filing  of  a  petition  provided  for  in 
Sec.  1  (Lan.  7283a;  B,  43C4-30a) 
Rev.  Stat.,  it  does  not  attempt  to 
limit  the  operation  and  effect  of  the 
decision  of  the  mayor  or  judge  upon 
the  original  petition.  This  is  pro- 
vided for  in  Sec.  6  (Lan.  7283f;  B. 
4364-30f)    Rev.  Stat.,  as  follows: 

'  And  the  law  shall  remain  in  full 
force  and  effect  in  said  resident  dis- 
trict for  twro  years  and  thereafter  un- 
til another  petition  is  presented  under 
the  provisions  of  Sec.  2  of  this  act.' 

This  provision  does  not  mean  that 
the  law,  under  the  decisions  of  the 
mayor  or  the  judge,  shall  remain  in 
force  only  until  another  petition  is 
presented  under  Sec.  2 ;  but  at  least 
two  years  and  thereafter  also,  unless 
another  petition  is  presented.  It 
seems  to  contemplate  a  filing  of  the 
petition  at  such  time  as  a  decision 
thereon  would  not  conflict  with  or 
annul  the  decision  rendered  under 
Sec.  1.  The  petition  under  either  sec- 
tion amounts  to  nothing  until  ap- 
proved by  the  mayor  or  judge,  and 
it  is  his  decision  that  gives  effect  to 
the  law,  which  according  to  Sec.  6 
shall  operate  for  at  least  two  years 
from  the  time  the  petition  is  held 
sufficient  by  the  mayor  or  judge.  The 
decision  of  the  mayor  or  judge  is,  in 
the  language  of  the  act,  only  prima 
facie  evidence,  and  a  later  one  can- 
not annul  a  former  one,  the  duration 
of  which  is  determined  by  the  act  it- 
self. 

It  seems  clear,  therefore,  that  a  pe- 
tition under  Sec.  8  may  be  filed  at 
any  time  after  two  years  from  the 
filing  under  Sec.  1,  and  it  is  equally 


7.  Pitner  v.  State,  37  Tex.  Cr.  268, 
39   s.   \Y.    662. 


LOCAL    OPTION    ELECTIONS. 


Ill 


§  382] 

§  382.  Sufficiency  of  petition. 

A  petition  is  sufficienl  which  is  substantially  in  compliance  with 
the  terms  of  the  statute,  an  exacl  compliance  therewith  nol  being 
,,,., ,  -  ary.8  And  the  addition  to  the  petition  of  unnecessary  words 
as  where  "or  other  intoxicating  liquors"  wen-  added  does  no1 
render  the  election  void.9  In  Kentucky  a  failure  to  name  in  the 
petition  a  date  for  the  election  is  held  not  to  invalidate  the  fic- 
tion held  in  pursuance  thereof,  it  being  within  the  power  of  the 
county  judge  to  fix  any  day.10  A  petition  may  be  sufficienl  though 
composed  of  several  papers.11  And  the  incorporating  of  a  peti- 
tion legally  withdrawn  with  a  new  petition  has  been  held  proper.12 
So  two  petitions  may  be  construed  as  one  in  considering  whether 
the  proper  number  of  signatures  are  attached.13  Where  the  statute 
contains  in  full  the  questions  to  be  submitted  it  is  held  sufficient 
in  the  petition  for  a  submission  of  such  question  to  vote  to  make 
reference  to  the  law.14  And  where  the  statute  does  not  prescribe 
the  requisites  of  the  petition  as  to  allegations  or  statements  it  is 


clear  that  the  decision  of  the  mayor 
under  Sec.  2  cannot  take  effect  until 
two  years  after  his  decision  under 
Sec.  1.  Leave  to  file  pet  it  on  in  error 
denied." 

"  Term  "  and  "  session "  of 
court  distinguished  in  construing 
statute  as  to  time  of  filing  petition. 
Lipari  v.  Stair,   lit  Tex.  App.  4.31. 

8.  State  v.  McCord,  207  Mo.  519, 
106  S.  W.  27. 

Sufficiency  of  statement  of  ob- 
ject of  petitioners  see  State  v.  Smith, 
38  Mo.  App.  618. 

Metes  and  bounds  need  not  be 
set  out  in  the  petition,  unless  the 
locality  embraces  less  than  a  whole 
precinct  or  part  of  two  precincts  or 
all  of  one  and  part  of  another  pre- 
cinct. Nichols  v.  State.  37  Tex.  Cr. 
546,  40  S.  W.  2<;s.  /;.,•  parte  Perkins, 
34  Tex.  Cr.  420,  31  S.  W.  17").  Suffi- 
ciency  of  description  of  district  in  pe- 


tition   see    Ex  parte   Segars,   32   Tex. 
Cr.  553.  25  S.  W.  26. 

9.  O'Neal  v.  Miliary,  30  Ky.  Law 
Rep.   888,   101   S.   \Y.    951. 

10.  Puckctt  v.  Snider,  110  Ky.  261, 
61  S.  W.  277. 

11.  State  v.  Hitchcock,  124  Mo. 
App.   101,   101   S.   W.    U7. 

12.  State  v.  Kello^  (Mo.  1908), 
113  S.  W.  660. 

IS.  State  v.  Weeks.  38  Mo.  App. 
.-.tiii,  followed  in  State  v.  Smith,  38 
Mo.   App.    619. 

i  »•  Matter  of  Rice,  95  App.  Div. 
(N.  Y.)  28,  88  N.  Y.  Supp.  512, 
holding  it  was  sufficienl  to  state  thai 
the  petitioners  "request  the  submis- 
sion at  the  next  biennial  town  meet- 
ing *  *  *  of  the  several  questions  in 
relation  to  the  sale  of  liquors  *  *  * 
as  provided  by  section  16  of  the  Liq- 
uor  Tax    Law." 


412 


LOCAL    OPTION    ELECTIONS. 


[§   383 


sufficient  if  it  expresses  in  an  intelligible  manner  the  desire  of  the 
petitioners  for  an  election  under  the  local  option  law.15  In  case 
of  a  clerical  error  in  copying  the  petition  by  the  clerk  the  court 
may  permit  the  minutes  to  be  corrected.16  But  the  courts'  order 
cannot  make  sufficient  a  petition  which  is  fatally  defective  under 
the  statute.17  In  Michigan  the  determination  of  the  board  of 
supervisors  as  to  the  sufficiency  of  the  petition  and  affidavits  is 
final  under  the  statute.18 

§  383.  Petition — as  to  signers  of  generally. 

In  those  states  in  which  a  petition  is  essential  the  statute  con- 
tains provisions  as  to  the  number  of  the  signers  and  prescribes 
their  qualifications  such  as  "  registered  voters "  or  "  qualified 
voters  "  and  in  such  a  case  the  petition  can  only  be  signed  by  those 
who  possess   the   statutory   qualification.19      In   construing   such 


15.  Ex  parte  Lynn,  19  Tex.  App. 
293.  See  Steele  v.  State,  19  Tex. 
App.  425. 

16.  Cantwell  v.  State,  47  Tex.  Cr. 
511,  85  S.  W.  19. 

17.  Matter  of  Rogers,  41  Misc.  R. 
(N.  Y.)   389,  84  N.  Y.  Supp.  1024. 

IS.  Madill  v.  Common  Council  of 
City  of  Midland,  156  Mich.  50,  120 
N.  W.   355. 

19.  Perce  v.  Raleigh,  140  N.  C.  65, 
52   S.  E.  277. 

Wliat  petition  should  show  as 
to  signers. — Where  only  registered 
legal  voters  can  sign  a  petition  for 
a  local  option  election  the  petition 
should  show  that  it  was  so  signed. 
People  v.  Wanek,  241  111.  529,  89 
X.   E.  708. 

Where  persons  signing  a  pe- 
tition have  since  died  their  names 
should  be  disregarded.  Ferguson  v. 
Monroe  County,  71  Miss.  524,  14  So. 
81. 

Withdrawal  of  names  from 
petition. — A  statute  merely  provid- 
ing   for    the    withdrawal    of    names 


fraudulently  attached  to  a  petition 
for  an  election  does  not  authorize  the 
withdrawal  of  a  name  voluntarily 
signed.  Koerker  v.  Board  of  Suprs. 
Werstein  v.  Board  of  Suprs.  .  (Mich 
1909),  120  N.  W.  354,  holding  names 
cannot  be  withdrawn  after  petition  is 
filed ;  Fischer  v.  Board  of  Suprs. 
(Mich.  1909),  120  N.  W.  13;  Patter- 
son v.  Mead,  148  Mich.  659,  666,  112 
N.  W.  742. 

After  a  petition  has  been  signed 
and  filed  petitioners  may,  it  is  held 
in  Kentucky,  appear  and  ask  that 
names  be  stricken  from  the  petition 
which  request  must  be  granted. 
Davis  v.  Henderson,  31  Ky.  Law  Rep. 
1252,  104  S.  W.  1009,  citing  Simpson 
v.  Commonwealth,  30  Ky.  Law  Rep. 
132,  97  S.  W.  404;  O'Neal  v.  Minary, 
30  Ky.  Law  Rep.  891,  101  S.  W.  951. 

Where  the  law  contains  no  provis- 
ion as  to  the  withdrawal  of  names 
of  signers  after  a  petition  for  a  local 
option  election  a  signer  cannot  with- 
draw Iiis  name  even  though  the  pe- 
tition   has   not   been    filed.      Rutled";e 


§  :;*:!] 


LOCAL    OPTION     KLECTIONS. 


11:: 


terms  the  phrase  "legal  voters"  is  held  to  be  synonymous  with 
"registered  voters.2"  And  where  a  statute  requires  thai  a  peti- 
tion for  an  (lection  shall  be  signed  by  a  certain  proportion  of 
qualified  voter*  a  finding  that  the  petition  was  Bigned  by  a  certain 
number  of  voters  qualified  to  vote  for  members  of  the  legislature  is 
sufficient  without  stating  that  they  were  qualified  according  to  the 
last  registration  books.21     And  a  petition  reciting  that  the  peti- 


v.  Board  of  Supervisors  of  Mar- 
quette County  (Mich.  1910),  124  N. 
W.  945.  It  is  said  in  the  opinion 
in  this  case:  "In  the  case  of  Koer- 
ber  v.  Supervisors,  155  Mich.  077, 
120  N.  W.  8,  it  was  held  that  one 
who  had  voluntarily  signed  a  peti- 
tion could  not  withdraw  his  name 
therefrom  after  the  petitions  were 
filed  with  the  county  clerk.  It  was 
not  decided  therein  that  he  could  not 
do  so  between  the  time  of  the  posting 
of  a  copy  of  the  petitions  and  the 
filing  of  the  originals  with  the  county 
clerk.  The  reasoning,  however,  of 
the  opinion  and  the  quotations  made 
therein  from  the  decisions  of  other 
courts  logically,  we  think,  leads  to 
this  result.  To  hold  otherwise  might 
give  rise  to  great  uncertainty.  A 
case  might  be  imagined  where,  after 
the  requisite  number  of  names  had 
been  secured  to  set  the  machinery  of 
the  law  in  motion,  persons  who  had 
attached  their  names  to  the  petitions 
and  had  lulled  the  circulators  of  the 
petition  into  a  feeling  that  sufficient 
signatures  had  been  procured  might 
then  withdraw  their  names  having 
intended  to  do  so  from  the  first  and 
thus  prevent  the  submission  of  the 
question  at  the  next  general  election. 
There  is  no  provision  in  the  law  for 
the  withdrawal  of  the  names  after 
the  petition  is  posted  and  we  think 
no  such  provision  should  be  read  into 
it."     Per  Moore,  J. 

See  also   Kern   v.    Board   of   Sup  sr- 


visors  of  St.  Clair  County  (Mich. 
1910),  124  X.  W.  '.ill  as  to  no  right 
to  withdraw  name  after  petition  has 
been   filed. 

Withdrawal  of  names  under 
Arkansas  statute. — One  signing  a 
petition  under  the  Arkansas  law  has 
the  right  to  have  his  name  erased 
before  the  petition  is  filed  in  court 
and  may  authorize  another  to  make 
such  erasure.  Bordwell  v.  Dills,  70 
Ark.  175,  66  S.  W.  040.  After  the 
petiton  has  been  acted  upon  there 
can  be  no  withdrawal.  See  Clark  v. 
Daniel,  77  Ark.  122,  91  S.  W.  9. 
And  a  petitioner  cannot  withdraw  on 
appeal.  McCullough  v.  Blackwell,  51 
Ark.   159,   10   S.   W.  259. 

20.  Roesch  v.  Henry   (Oreg.   I 
103   Pac.  439. 

21.  Lemon  v.  Peyton,  til  Miss.  161, 
8  So.  235. 

A  registered  elector  is  a  quali- 
fied voter  under  the  Michigan  stat- 
ute as  to  signers  of  petitions  for 
election.  Wei  stein  v.  Board  of 
Suprs.   (Mich.  1909),  120  N.  W.  354. 

A  registration  book  has  been 
held  not  to  be  prima  facte  evidence 
that  the  persons  signing  a  petition 
were  qualified  voters  as  required  by 
law.  Ferguson  v.  Monroe  County. 
71   Miss.  524,   14  So.  81. 

Statute  providing  for  refer- 
ence to  poll  lists  in  verifying 
es  attached  to  petition  For  an 
tion  construed.  Koerker  v.  Bond 
of  Suprs.   (Mich  1909),  120  X.  W.  8, 


444  LOCAL    OPTION    ELECTIONS.  [§   384 

tioners  are  citizens  sufficiently  shows  that  they  are  qualified 
voters.22  Where  the  statute  requires  a  certain  per  cent  of  the 
voters  to  sign  a  petition  for  local  option  in  a  county  it  means  of 
the  voters  of  the  entire  county  and  not  of  each  precinct  or  muni- 
cipality within  the  county.23  But  a  requirement  that  a  written 
petition  be  filed  containing  the  signatures  of  a  certain  per  cent  of 
the  voters  of  the  territory  for  which  the  election  is  sought,  is  com- 
plied with  where  separate  papers  from  different  precints  are  filed 
containing  the  requisite  signatures  in  each.24  And  where  a  statute 
requires  a  petition  to  be  signed  by  a  majority  of  the  adult  resi- 
dents it  has  been  decided  that  both  males  and  females  may  sign.25 
Again  the  failure  of  a  petition  to  have  the  signatures  of  the  req- 
uisite number  of  votes  attached  has  been  held  in  a  case  in  New 
York  not  to  be  material  where  there  has  been  a  full  and  fair  vote 
against  local  option  and  not  to  justify  the  issuance  of  a  tax 
certificate.26  And  where  the  court  is  authorized  to  order  an  elec- 
tion on  its  own  motion  and  in  its  discretion  the  fact  that  a  peti- 
tion for  an  election  does  not  have  the  requisite  number  of  sign- 
ers does  not  render  the  election  void.27 

§  384.  Petition — presumption  as  to  signers — burden  of  proof. 

That  a  petition  contained  the  requisite  number  of  competent 
signers  is  presumed  from  the  fact  of  an  order  for  the  election 
having  been  issued.28  So  in  view  of  the  action  of  a  town  clerk, 
with  whom  the  petition  is  filed,  in  submitting  the  question  it  will 


22.  Steele   v.    State,    19   Tex.   App.  27.  Lambert  v.   State,   37  Tex.  Cr. 
425.      Ex  parte   Lynn,    19   Tex.   App.  232,  39  S.  W.  299. 

293.  28.  State    v.    Hitchcock,    124    Mo. 

23.  Roper  v.  Scurlock,  29  Tex.  Civ.  App.  101,  101  S.  W.  117. 

App.   4G4,    69    S.   W.   4f><».  In   Arkansas   it   has   been   declared 

24.  Smith  v.  Patton,   103  Ky.  444,  that  the  signatures  to  a  petition  are 
45  S.  W.  459.  taken  as  prima  facie  genuine  or  prop- 

25.  Blackwell  v.  State,  36  Ark.  178.  erly  authorized.    Williams  v.  Citizens, 
2«.  Matter  of  Clement,  20  Misc.  R.  40   Ark.   200. 

(N.  Y.)   20,  60  N.  Y.  Supp.  328.  After    an    election    has    been    held 


;  385] 


LOI  AL    OPTION    ELECTIONS. 


145 


be  presumed  that  the  petition  cantained  the  signatures  required  by 
law.29  And  where  it  is  claimed  thai  a  petition  for  a  submission 
of  this  question  to  the  voters  did  not  contain  the  requisite  number 
of  signatures  the  burden  is  on  those  attacking  the  vote  and  election 
to  show  such  fact.30 

§  385.  Petition— duty  of  officials  as  to  determining  sufficiency  of 
signatures. 
Where  the  designated  official  or  board  before  ordering  an  elec- 
tion should  know  certain  jurisdictional  facts  in  regard  to  the 
petitioners  it  is  his  or  their  duty  to  ascertain  the  truth  and  to 
hear  evidence  for  that  purpose.31  But  where  the  official  person- 
ally knows  the  petitioners  it  is  held  that  he  need  not  hear  evidence 
to  establish  such  facts.32  And  the  fact  that  members  of  a  town 
council  being  electors  sign  a  petition  is  held  not  to  disqualify 
them  from  deciding  if  the  petition  is  signed  by  the  r<  quisite  num- 
ber of  electors.33  In  determining  whether  the  petitioners  for  an 
election  were  qualified  all  parts  of  the  record  are  to  be  con- 
sidered.34 


u nl  the  result  duly  declared  the 
application  therefor  can  not  be  im- 
peached by  showing  or  attempting 
to  show  that  some  of  the  signatures 
of  persons  to  the  application  were 
those  of  persons  not  qualified.  Long 
v.   State    (Ala.    1010),   51    So.  636. 

i2i>.  Matter  of  Town  of  Xewburgh, 
97  App.  Div.  (X.  Y.)  438,  89  N.  Y. 
Supp.    10(i5. 

BO.  Matter  of  Town  of  Newburgh, 
97  App.  Div.  (X.  V.  438,  89  N.  Y. 
Supp.  10(15,  citing  Matter  of  Rice, 
95  App.  Div.  (X.  Y.)  28,  88  X.  Y. 
Supp.    512. 

The     allegation     of     a     remon- 
strance   pled    against    a    petition   to 
a  court  for  a  prohibitory  order  to  the 
effect   that   certain   signatur  a   I 
petition   were   not   genuine   should   In- 


sustained  by  proof.  McCullough  v. 
Blackwell,  51  Ark.  15!).  MS.  W.  259. 

31.  Wyatt  v.  Ryan,  113  Ky.  306,  68 
S.  W.   134. 

The  jurisdiction  to  determine 
whether  the  signers  to  a  petition  were 
qualified  is  with  the  county  court  in 
Missouri.  State  v.  McCord,  207  Mo. 
5 lit.    lot;   S.   W.   27. 

Duty  of  board  to  hear  proof 
as  to  genuineness  of  signatures  to 
petition  see  Madison  County  v. 
Powell.  75  Miss.  762,  2::  So.  425. 

82.  Howard  v.  Stan  till.  31  Ky. 
L.  R.  -207.  102  s.  \V.  831. 

.".a.  Hunter  v.  Senn..  til  S.  C.  44, 
39  S.  E.  235. 

34.  State  v.  McCord,  2o7  Mo.  519, 
106   s.  W.  27. 


446  LOCAL    OPTION    ELECTIONS.  [§   386 

§  386.  Election — order  for  generally. 

The  officials  vested  with  authority  to  order  an  election  must  act 
in  compliance  with  the  law  and  cannot  exceed  the  authority  con- 
ferred.35 Where  the  statute  contains  requirements  as  to  the  order 
for  an  election  such  as  to  what  it  shall  contain  or  when  it  shall 
be  made  compliance  therewith  is  generally  held  essential  at  least 
substantially.*6  So  the  provisions  as  to  ordering  the  election  as 
for  instance  that  the  order  may  be  made  at  a  date  not  earlier  than 
a  certain  number  of  days  after  the  petition  is  lodged,  must  be  com- 
plied with.'17  And  an  order  for  an  election  must  be  issued  at  the 
session  of  the  court  prescribed  by  statute.38  Such  an  order  how- 
ever is  sufficient  if  the  substance  of  the  statute  is  incorporated 
therein  though  the  exact  words  are  not  used.39  So  when  from  an 
order  of  election  it  is  clear  as  a  whole  that  it  was  meant  by  law  for 
a  local  option  election  and  the  voters  could  not  have  been  misled 
it  will  be  considered  sufficient  though  not  worded  in  the  exact  terms 
of  the  statute.40  And  an  order  for  an  election  has  been  held  suffi- 
cient to  make  the  election  valid  where  in  stating  the  question 
there  is  a  substantial  compliance  with  the  statute,  and  in  the  pub- 

35.  Ex  parte  Beaty,  21  Tex.  App.  statute  it  is  held  essential  that  the 
426,  1  S.  W.  451.  signatures  to  the  petition  are  gen- 
It  will  be  presumed  that  in  or-  uine,  that  the  signers  are  residents 
dering  an  election  the  commissioners  of  the  precinct  and  are  equal  in  num- 
acted  within  their  powers.  Cofield  v.  ber  to  twenty-five  per  cent  of  the 
Britton  (Tex.  Civ.  App.  1908),  109  votes  cast  at  the  last  preceding  elec- 
S.  W.  493.  tion     in    such     precinct.       Wyatt     v. 

Power    of    legislature    to    pre-  Ryan,  113  Ky.  306,  08  S.  W.  134. 

scribe  terms. — The  general  assembly  Sufficiency  of  order  see  Magill  v. 

can  prescribe  such  terms  as  it  thinks  State,    51    Tex.    Cr.    357,    103    S.    W. 

proper    as    a    prerequisite    to    order-  397. 

ing  an  election.     Pace  v.  Raleigh,  140  37.  Wilson   v.   Hines,   99   Ky.   221, 

X.   C.   65,  52   S.   E.  277,  35   S.   W.   629,   37   S.  W.   148. 

To  whom  addressed. — The  order  38.  Ex  parte  Sublett,  23  Tex.  App. 

of  election  should  be  addressed  to  the  309,  4  S.  W.  894. 

city    or   town    authorities.      Common-  39.  Wade  v.  State,  52  Tex.  Cr.  608, 

wealth  v.  King,  86  Ky.  430,  6  S.  W.  108   S.  W.   376. 

l_!t.  40.  Sweeney  v.  Webb,  33  Tex.  Civ. 

To    give    jurisdiction    to    order  App.  324,  76  S.  W.  766. 
an  election  under  the  Kentucky 


§§   387,i  LOCAL    I  NS.  447 

lished  notice  of  election  the  question  is  stated  in  the  language  of 
the  statute  and  the  ballol  is  in  proper  form.41  If  the  statute  dot  - 
not  prescribe  the  form  of  the  order  or  state  what  facte  it  .-hall 
recite  it  should  appear  therefrom  that  the  necessary  rondit ion- 
existed  to  give  the  court  jurisdiction.  '- 

§  387.  Election— order  for  need  not  state  exceptions  as  to  sales. 
In  ordering  a  local  option  election  exceptions  in  the  statute  as 
to  certain  classes  of  sales  need  not  be  incorporated.43  So  where 
the  law  provides  for  the  submission  of  but  one  issue  that  "  For 
prohibition "  and  "  against  prohibition "  the  order  authorizing 
the  election  need  not  contain  the  exceptions  in  favor  of  the  sale 
of  liquor  for  medicinal  and  sacramental  purposes,  such  exception 
being  no  part  of  the  matter  to  be  voted  upon  but  following  as  a 
matter  of  course.44 

§  388.  Election — order  for — errors  or  omissions  in. 

Mere  clerical  errors  or  omissions  in  the  order  will  not  as  a  gen- 
eral rule  invalidate  an  election  thereunder  it  not  appearing  that 
any  one  was  misled  thereby  or  deprived  of  a  right  to  vote  upon  the 
question.45  So  the  mere  misnaming  the  title  of  an  officer  to  hold 
the  election,  in  an  order  therefor,   will  not   render  the  election 


n.  State     v.     Kellogg,     Mo.      133  operation  domestic  wines  the  act  will 

\->l>.     431,     113    S.   W.   660,   holding  not   apply  to  them.     Smith  v.  state, 

•hit   an  omission  to  designate  in  the  112  6a.  291,  37   S.   E.  441. 

order  the  newspaper  in  which  the  no-  44.  Shields    v.    State,    38    Tex.    Or. 

tice  0f  the  election  is  to  he  published  2:>2.  42  S.  W.  398.    See  also  Truesdale 

does    not   affect    the    validity   of   the  v.   State,  42  Tex.  Cr.   ."'It.  61    S.  W. 

election    where    the    clerk    published  <i:;r».  <-itinLr  Cloii.mnn  v.  st;.to.  :'.7  Tox. 

the  notice  in  all  the  newspapers  pah-  Cr.  167,  39  S.  W.  L13;  Bruce  v.  state 

lished  in  the  county.  36  Tex.  Cr.  53,  39  S.  W.  68 

42.   State    v.     Bird,     108     Mo.    App.  45-   Inadvertent    errors   in    notice  of 

163    83  S.  W.  284.  submission   are  not  a  ground   for  re- 

•»^.  Sebastian  v.  State.  44  Tex.  Cr.  submission.     People  ex  rel.  Hayes  v. 

508.   72   S.   W.   840:    Frickie  v.   State,  Edwards.   42    Mise.   R.    (N.    Y.)    567, 

39  Tex.  Cr.  254.   15  S.  W.  815.  87  X.  Y.  Supp.  018. 

Where    the    law    excepts    from    its 


44S  LOCAL    OPTION    ELECTIONS.  r§   339 

void.46  And  failure  in  an  order  of  election  to  designate  the  hours 
at  which  the  election  is  to  be  carried  does  not  invalidate  the  elec- 
tion it  not  appearing  that  any  citizens  entitled  to  vote  were  de- 
prived of  that  privilege.47  And  an  order  for  election  reciting 
that  the  petition  therefor  was  signed  by  a  certain  per  cent  of 
the  voters  of  the  entire  district  instead  of  reciting  that  it  was 
signed  by  such  per  cent  of  the  voters  of  smaller  subdivisions  of 
such  district  does  not  render  the  election  void.48  Again  where  a 
judge  has  made  a  clerical  error  in  making  the  order  for  an  elec- 
tion he  may  correct  it  by  making  a  second  order  and  an  election 
held  under  the  latter  order  will  be  valid.49  And  interlineations 
in  an  order  for  an  election  made  by  the  clerk  under  the  court's 
direction  do  not  invalidate  the  order.50  Where  the  date  in  the 
order  for  holding  the  election  differs  from  that  recited  in  the  peti- 
tion the  one  recited  in  the  order  will  control.51 

§  389.  Election — order  for — designating  locality  in. 

In  ordering,  the  election  officials  must  not  exceed  authority  as  to 
territory  embraced.52  So  where  after  an  order  for  an  election  for 
an  entire  county  is  made  the  attention  of  the  court  is  called  to  the 
fact  that  a  city  within  the  county  is  shown  by  a  census  taken 
after  the  making  of  the  order  to  have  the  number  of  inhabitants 
which  the  statute  provides  shall  entitle  it  to  a  separate  election, 
the  order  should  be  vacated  and  if  not  an  election  held  is  void.53 


46.  Ex   parte   Mayes,    39    Tex.    Cr.  A  vote  upon  the  adoption  of  a  stat- 
36,  44  S.  W.  831.  nte    giving    the    right    to    cities    and 

47.  /;./•   parte   Mayes,    30    Tex.    Cr.  towns  to  engage  in  the  liquor  traffic 
36,  44  S.  W.  831.  if  they  vote  to  accept  the  provisions 

>s-  Commonwealth     v.     Jones.     27  of  the  act,  when  taken  in  accordance 

Ky.  L;nv  Rep.  Ki.  84  S.  W.  305.  with  its  terms  and  on  the  day  desig- 

49.  Tousey  v.  Delluy,  23  Ky.  Law  nated  for  that  purpose  is  not  invalid 

Rep.  458,  02  S.   W.   11  IS.  merely  because  the  date  specified  for 

5©.  Bruce  v.  State,  36  Tex.  Cr.  53,  the  iown   meeting  was   prior  to  that 

39  S.  W.   083.  upon  which  the  general  provisions  of 

Bl«  Thurmond  v.  State,  40  Tex.  Cr.  the  act  were  to  take  effect.     State  v. 

162,  79  S.  W.  316.  Wenzel,  72  N.  H.  396,  56  Atl.  918. 


§§390,391]  LOCAL   UI'TK.N    ELECTIO  ,  ,:, 

In  Texas  it  is  decided  that  an  application  or  order  for  an  election 
is  sufficient  which  alludes  to  a  county,  city  or  town  by  name  bu1 
if  the  locality  is  other  than  a  known  subdivision  of  the  state  then 
it  should  be  described  by  metes  and  bounds.54 

§  390.  Order — record  as  to. 

As  the  board  in  ordering  an  election  exercises  a  limited  and 
special  jurisdiction  unless  its  record  contains  a  recital  of  the  nec- 
essary jurisdictional  facts  or  it  appears  that  these  facts  were 
shown  to  the  satisfaction  of  the  board,  it  acts  without  jurisdic- 
tion in  making  the  order  and  the  election  is  void.55  But  where 
the  clerk  in  entering  the  order  for  an  election  upon  the  records 
erroneously  omits  the  recitals  contained  therein  a  nunc  pro  tunc 
entry  after  and  at  the  same  term  correcting  the  record  so  as  to 
show  that  the  order  contained  the  proper  recitals  is  within  the 
power  of  the  court  to  make.56  And  a  mistake  in  the  date  of  an 
order  entered  in  the  record  of  the  county  court  in  relation  to  an 
election  will  not  invalidate  such  election.57 

§  391.  Notices  of  election — publication  and  posting  of  generally. 
An  ordinary  provision  of  a  statute  as  to  local  option  is  one  re- 
quiring that  notice  of  the  election  shall  be  published  in  a  news- 
paper or  posted  for  a  certain  length  of  time  prior  to  the  election. 
Compliance  with  such  a  provision  is  in  many  cases  considered  as 
essential  to  the  validity  of  the  election.58     So  under  the  ISTew  York 

52.  Commissioners  Court  of  Nolan  •""'«•  Williams  v.  Stato.  35  Tox.  Cr. 
County  v.  Beall,  98  Tex.  104,  81  S.  52,  31  S.  W.  654;  Ex  parte  Speagle, 
W.  520:  Board  v.  Buchanan,  36  Tex.  34  Tex.  Cr.  465,  31  S.  W.  171.  See 
Civ.  App.  411,  82  S.  W.  194;  Oxford  Bruce  v.  State,  36  Tox.  Cr.  53,  39 
v.  Frank  County  Judge,  30  Tox.  Civ.  S.   W.  083. 

App.  343.  70  S.  W.  426.  •"•   Lester  v.  Miller,  70  Miss.  309, 

53.  State    ex    rel     Wirt     v.     Cass       24   So.   193. 

County   Court.    137     Mo.     App.    098,  BG.  Stato    v.    Bird,    108    Mo.    App. 

119    S.    W.    1010.      See   also    State  v.  103.   S3    S.    W.    284. 

Mitchell     (Mo.     1908),     115     S.     W.  •"«"•  Thomas    v.    Commonwealth.    90 

1098.  Va.  92,   17  S.  E.  788. 


450 


LOCAL  OPTION  ELECTIONS. 


[§  391 


ir  is  decided  that  a  submission  of  questions  without  posting 
the  notices  thereof  as  required  by  the  statute  is  void  and  that 
where  this  has  occurred  it  is  proper  to  resubmit  the  questions  at 
a  special  town  meeting  called  in  accordance  with  the  provisions  of 
the  act.59  In  other  cases  in  this  same  state  however  it  is  held 
that  failure  to  post  or  publish  the  notice  is  not  necessarily  a  juris- 
dictional defect  but  that  where  it  is  not  posted  or  published  the 
court  may  exercise  a  certain  discretion  in  determining  whether  an 
application  for  resubmission  at  a  special  town  meeting  shall  be 
granted.60  And  in  other  jurisdictions  it  has  been  decided  that 
the  failure  to  properly  post  notices  will  not  invalidate  the  election 
where  the  result  was  not  thereby  affected.61     So  in  a  recent  case 


58.  State  v.  Reid  (Mo.  1908),  114 
S.  W.  1116;  Matter  of  Smith,  44 
Misc.  R.  (N.  Y.)  384,  89  N.  Y.  Supp. 
1006;  Guernsey  v.  McHaley  (Oreg. 
1908),  98  Pac.  158;  Haddox  v. 
County  of  Clarke,  79  Va.  677. 

Sufficiency  of  notice  of  submis- 
sion or  of  election.  See  Matter  of 
Woolston,  35  Misc.  R.  (N.  Y.)  735, 
72  N.  Y.  Supp.  406;  Voss  v.  Terrell, 
12  Tex.  Civ.  App.  439,  34  S.  W.  170. 

The  notice  of  an  election 
should  conform  to  the  order  of 
the  court. — State  v.  Rinke  (Mo. 
App.  1909),  121  S.  W.  159. 

Notice  of  election  should  be 
posted  for  the  length  of  tinie 
prescribed  by  statute. — State  v. 
Kaufman,  75  Mo.  App.  188;  State  v. 
Kaufman,  45  Mo.  App.  656;  State  v. 
Tucker,   32  Mo.   App.   620. 

Under  a  Texas  statute  it  has  been 
decided  that  a  failure  to  post  one  of 
the  notices  the  required  length  of 
time  is  not  ground  for  contesting  the 
election  the  result  not  having  been 
affected  thereby.  Norman  v.  Thomp- 
son. UC  Tex.  250,  72  S.  W.  62. 

A  statute  requiring  publica- 
tion   for    four    successive    weeks 


before  election  is  to  be  construed  as 
meaning  twenty-eight  days.  State  v. 
Brown,  130  Mo.  App.  214,  109  S.  W. 
99;  State  v.  Swearingen,  128  Mo. 
App.  605,  107  S.  W.  1.  See  State  v. 
Dobbins,  116  Mo.  App.  29,  92  S.  W. 
136. 

59.  Matter  of  O'Hara,  63  App.  Div. 
(N.  Y.)  512,  71  N.  Y.  Supp.  613; 
Matter  of  Powers,  34  Misc.  R.  (N. 
Y.)  636,  70  N.  Y.  Supp.  590.  Com- 
pare Matter  of  Rowley,   34   Misc.  R. 

(N.  Y.)  662,  70  N.  Y.  Supp.  208; 
Matter  of  France,  36  Misc.  R.  (N. 
Y.)    693,    74   N.   Y.   Supp.    379. 

In  New  York  all  four  questions 
must  be  submitted  in  accordance  with 
Liquor  Tax  Law.  Matter  of  Eggle- 
ston,  51  App.  Div.  (N.  Y.)  38,  64 
N.  Y.  Supp.  471 ;  People  ex  rel.  Caf- 
frey  v.  Mosso,  30  Misc.  R.  (N.  Y.) 
164,  63  N.  Y.  Supp.  588. 

60.  Matter  of  Town  of  La  Fayette, 
45  Misc.  R.  (N.  Y.)  141,  91  N.  Y. 
Supp.  970.  See  Matter  of  Woolston, 
35  Misc.  R.  (N.  Y.)  735,  72  N.  Y. 
Supp.  406,  holding  the  provision  to 
be  merely  directory. 

61.  Rocsch  v.  Henry  (Oreg.  1909), 
103  Pac.  439. 


..,2]  LOCAL   OPTION    ELECTIONS.  !-| 

in  Michigan  in  which  it  was  claimed  thai  an  election  w&b  void 
because  of  the  failure  of  the  county  clerk  to  publish  the  i 
the  election  the  prescribed  time  before  it  was  held  the  court  said: 
"If  such  an  election  is  to  be  held  invalid  and  the  decisive  will 
of  tho  people  thwarted  by  the  mistake  of  the  county  clerk  in  fail- 
ing to  publish  the  notice  for  the  exact  time  it  must  he  hecause  the 
rules  of  law  are  so  inexorable  that  they  will  never  tolerate  a  harm- 
less error  or  mistake  of  a  ministers!  officer.  *  *  *  We 
choose  to  rest  our  decision  in  this  ease  upon  the  fact  that  a  strict 
compliance  with  the  law  as  to  notice  would  have  made  no  differ- 
ence with  the  result  of  the  election,  inasmuch  as  a  majority  of  all 
the  voters  of  the  county  voted  for  prohibition.  Under  such  cir- 
cumstances omissions  of  duty  by  ministerial  officers  in  giving 
notice  will  not  invalidate  the  election."  62 

§  392.  Same  subject — manner  and  mode  of  publication. 

Where  the  statute  as  to  local  option  prescribes  the  manner  of 
giving  notices  for  elections  a  provision  in  a  general  law  as  to 
elections  is  not  applicable.63  A  provision  that  the  notice  of  the 
ordering  of  an  election  shall  be  published  in  newspapers  selected 
by  certain  officials  is  complied  with  by  a  publication  in  all  the 
newspapers  among  which  the  selection  of  those  entitled  to  publish 
the  notice  must  be  made.04     And  where  the  proprietor  of  a  news- 

62.   Bauei  v.  Boardof  Denmark  Tp.  The    publication    of    ootice    of    an 

(Mich.    1909),    122   X.   W.    121.     Per  election  need  not  be   in   a    newspaper 

Grant,  J.  published  within  the  territorial  limits 

68.  Roper  v.  Scurlock,  29  Tex.  Civ.  of  that  part  of  the  county  1<>  be  af- 

App.   tut.  69  s.  \Y.  45G.  fected  but  it  may  be  iii  a  newspaper 

Failure  to  designate  news-  not  so  published  but  i-;  besl  ca leu- 
paper. — Where  the  court  did  not  lated  to  carry  notice  to  the  voters  of 
designate  a  newspaper  in  which  the  the  territory  in  which  such  election 
notice  of  election  should  be  published  is  to  be  held.  State  v.  Turner  (Mo. 
it  was  declared  that  its  subsequent  App.  L910),  125  S.  W.  531. 
action  after  the  election  in  amending  84.  Paul  v.  Gloucester  County.  50 
the  record  should  not  be  upheld.  X.  J.  L.  585,  15  Atl.  272,  1  L  E.  A. 
state  v.  Baldwin,  109  Mo.  App.  573,  86. 
83  S.  W.  266. 


452  LOCAL    OPTION    ELECTIONS.  [J   393 

paper  refused  to  publish  the  uotice  it  has  been  decided  under  the 
Kentucky  statute  that  publication  by  handbills  is  sufficient  the 
statute  providing  that  publication  shall  be  by  both  means.65  The 
officer  whose  duty  it  is  to  give  the  notice  of  an  election  may  adopt 
a  printed  signature  as  his  own  and  its  use  will  not  render  the 
notice  defective  the  statute  not  so  providing.06  And  a  sheriff 
charged  with  the  duty  of  posting  notices  may  select  agents  to  post 
them  and  is  not  confined  in  his  selection  to  those  whom  he  spe- 
cially appoints  as  deputies.67 

§  393.  Same  subject — presumption  as  to — burden  of  proof. 

That  notice  of  an  election  was  in  conformity  to  the  statute  will 
be  presumed  in  the  absence  of  evidence  to  the  contrary.68  And  it 
is  not  necessary  in  a  prosecution  to  show  affirmatively  that  notice 
of  an  election  was  given  as  it  is  for  the  defense  to  show  it  was 
not.69  And  where  a  prima  facie  case  is  made  by  the  state  as  to 
the  taking  of  required  preliminary  steps  one  claiming  required  no- 
tices of  election  were  not  posted  has  the  burden  of  establishing  it.70 
But  though  it  will  be  presumed  that  copies  of  an  order  for  elec- 
tion were  posted  as  required  by  law  this  presumption  may  be 
overcome,  as  by  evidence  showing  the  delivery  of  such  copies  to 


66.  Butler  v.   Fiscal  Court  of  Jef-  v.  Dugan,  110  Mo.  138,  19  S.  W.  195. 

ferson  County,  31  Ky.  Law  Rep.  590,  69.  State     v.     Foreman,     121     Mo. 

103  S.  W.  251.  App.   502,  97   S.  W.  209. 

CO.  Roesch  v.  Henry   (Oreg.  1909),  70.  Frickie    v.    State,    39    Tex.    Cr. 

103  Pac.  439.  254,  45  S.  W.  810;  Irish  v.  State,  34 

«7.  Roesch  v.  Henry   (Oreg.   1909),  Tex.  Cr.  130,  29  S.  W.  778;  Segars  v. 

103  Pac.  439.  State,  35  Tex.  Cr.  45,  31   S.  W.  370; 

68.  State  v.   Brown,   130  Mo.  App.  Bowman  v.  State,  38  Tex.  Cr.  14,  40 

214,  109  S.  W.  99.  S.  W.  796,  41   S.  W.  035;   Shields  v. 

Proof  of  publication  of  notice.  State,  38  Tex.  Cr.  252,  42  S.  W.  398. 

— Where  the  statute  failed  to  provide  An    allegation    that    "no    notice 

the  manner  in  which  the  notice  of  the  was  ever  issued  or  posted  as  by  law 

election  or  its  result  should  be  proved  provided  "    presents   no    issuable   fact 

it    was   held   competent   to   prove   the  but    is    a    mere    conclusion    of    law. 

publication  of  the  notice  by  the  oral  State  v.  County  Court    (Oreg.   1909), 

testimony    of    the    publishers    of    the  101  Pac.  907. 
paper  in   which   it  was  made.     State 


§  394]  LOCAL   OPTION    ELECTIONS.  !.-;; 

nun  to  post  where  there  was  no  legal  obligation  on  their  part 
to  post  them.71 

§  394.  Effect  of  irregularities  in  connection  with  preliminaries  to 
election. 
It  may  be  stated  generally  that  mere  irregularities  in  connec- 
tion with  the  preliminaries  to  an  election  will  not,  in  the  absence 
of  evidence  showing  that  the  result  was  thereby  affected,  avoid  the 
election.72  Mere  irregularities  of  election  officers  not  affecting 
the  purity  of  the  election  nor  the  right  of  the  voter  and  not  in 
reference  to  matters  made  mandatory  by  law  do  not  affect  the 
validity  of  the  election.73  So  irregularities  in  putting  names  on 
the  registration  list  does  not  avoid  an  election  where  the  persons 
whose  names  were  so  placed  thereon  were  qualified  voters.74  And 
failure  on  the  part  of  registrars  to  observe  legal  requirements  as 
where  they  close  the  registration  books  too  early  does  not  avoid 
an  election  unless  it  appears  affirmatively  that  the  result  is  differ- 
ent from  what  it  would  have  been  if  there  had  been  a  proper  com- 
pliance.75 And  in  New  York  it  is  declared  that  where  the  people 
of  a  town  have  expressed  their  will  at  an  election  it  should  not 
be  overridden  because  of  the  negligence  and  carelessness  of  town 
officers,70  and  that  a  resubmission  should  not  be  ordered  for  slight 
irregularities.77 

71.  James   v.   State,   21   Tex.   App.  76.  People     ex     rel.     Guernsey     v. 
189,  17  S.  W.  143.                                      Pierson,  35  Misc.  R.   (X.  Y.)   406,  71 

72.  Cofield    v.    Britton     (Tex.    Civ.      X.  V.  Supp.  993. 

App.  1908),  109  s.  W.  493.  77.  Matter   of   Smith,   44   Misc.  R. 

7=5.  Fullwood    v.    Stal.-.    (17    Miss.  iX.  Y. )   3S4.  89  X.  Y.  Supp.  1006. 

554    7   So.  4:S-2.  The  New  York  law  contemplates 

71.  Cole    v.    McClendon,     109    Ga.  thai   action  shall  be  taken  at  the  an- 

183,  34  S.   E.  384.  Ininl   town    meeting.     People   ex   rel. 

That    the    poll   lists   were    not  Thomas    v.     Sackett,     15     App.    Div. 

properly    subscribed    held     no1     a  I  X.   Y.)    290,   4  I    X.   Y.   Supp.   593, 

fatal  defect.     People  >  e  rel.  Guernsey  A   general   election  larsr    1 

v.  Pierson,  ::.">  Misc.  I!.    1  X.  Y.  1   Kit;.  ing  all  special  elections  1"  be  held  on 

71  X.  Y.  Supp.  993.  :1    Tuesday,    has    been    held    in    New 

75.  Chamlee  v.  Davis,  115  Ga.  266,  Jersey   no1    t"   apply   1<>   an   election 

41   S.  E.  691.  under    a    local    option    law.      Pan!    v. 


454 


LOCAL    OPTION    ELECTIONS. 


[§§  395,390 
§  395.  Election — provisions  as  to  time  of  holding  of. 

The  statutes  generally  provide  as  to  the  time  when  an  election 
shall  be  held  and  where  there  are  provisions  to  this  effect,  the 
election  to  be  effective  should  be  held  in  accordance  therewith.78 
So  an  election  must  be  held  within  the  time  designated  after  re- 
ceipt of  petition  where  the  statute  contains  a  provision  of  this 
character,79  and  an  election  held  after  such  period  has  elapsed  is 
void.80  And  the  election  must  be  held  within  the  prescribed 
period  after  the  date  of  the  order  therefor.81 


§  396.  Same  subject — time  prescribed  with  reference  to  another 
election. 
Where  a  statute  provides  that  an  election  shall  not  be  held 
within  a  certain  period  before  or  after  a  certain  other  election, 
there  must  be  a  compliance  therewith,82  and  an  election  inside  of 
the  time  prescribed  will  be  void.83     So  where  a  statute  requires 


Gloucester  County,  50  N.  J.  L.  585, 
15  Atl.  272,  1  L.  R.  A.  86. 

Annual       election       required. — 

Under  a  provision  that  if  a  majority 
vote  in  favor  of  license  permits  shall 
be  "  issued  for  the  ensuing  year " 
there  must  be  an  annual  submission 
of  the  question  to  the  people.  State 
v.  Barber,  19  S.  D.  1,  101  N.  W. 
1078. 

79.  State  v.  Kellogg  (Mo.  1908), 
113  S.  W.  660. 

80.  State  v.  Ruark,  34  Mo.  App. 
325. 

81.  King  v.  state,  33  Tex.  Cr.  547, 
28  S.  W.  201 ;  Curry  v.  State,  28  Tex. 
App.  475,   13  S.  W.  752. 

82.  Wynne  v.  Williamson,  94  Ga. 
603,  20  S.  E.  436;  In  re  Wooldridge, 
30  Mo.  App.  C12;  Examine  State  v. 
Searcy.  39  Mo.  App.  393;  Seay  v. 
State,  51  Tex.  Cr.  444,  102  S.  W. 
1127. 

Computation  of  time. — Where  a 


local  option  election  cannot  be  held 
within  so  many  days  of  a  regular 
election  the  day  on  which  the  regu- 
lad  election  is  held  is  to  be  included 
in  computing  the  time.  Newton  v. 
Ogden,  126  Ky.  101,  31  Ky.  R.  549, 
102    S.   W.   865. 

A  void  election  is  not  an  election 
within  the  legal  period.  State  v. 
Rinke  (Mo.  App.  1909),  121  S.  W. 
159. 

In  Texas  it  has  been  decided  that 
a  provision  of  the  statute  that  no 
election  shall  be  held  within  "  the 
same  prescribed  limits  "  within  a  cer- 
tain length  of  time  is  to  be  construed 
as  meaning  all  of  the  same  territory 
and  not  as  precluding  an  election  in- 
the  same  precinct  for  a  town,  city 
or  subdivision  thereof.  Ex  parte 
Brown,  35  Tex.  Cr.  443,  34  S.  W.  131. 
But  see  §   378  herein. 

83.  Ex  parte  Randall,  50  Tex.  Cr. 
519,  m  S.  W.  870. 


s  3<j7]  LOCAL   OPTION    ELECTIONS.  4"j.j 

that  a  certain  period  shall  elapse  after  an  election  before  another 
may  be  had  a  petition  which  shows  on  its  face  that  the  time  re- 
quired has  not  elapsed  is  wanting  in  a  materia]  jurisdictional 

averment.84  And  in  this  connection  it  has  been  decided  that  an 
amendment  to  a  general  law  will,  where  it  contains  a  provision  to 
this  effect,  apply  to  all  elections  held  after  its  passage,  whether  the 
last  election  took  place  before  or  after  the  passage  of  the  amend- 
ment.85 But  an  act  amendatory  of  a  local  option  act  has  been 
held  in  so  far  as  it  affects  the  time  within  which  a  new  election 
may  be  held  to  only  apply  to  those  localities  where  local  option 
has  been  adopted.80 

§  397.  Election — manner  of  holding — generally. 

Where  the  constitution  of  a  state  prescribes  the  mode  in  which 
local  option  may  be  voted  upon  the  legislature  in  the  passage  of 
laws  in  respect  thereto  can  not  provide  otherwise  than  in  accord- 
ance with  the  mode  prescribed.87  But  where  the  legislature  in  the 
exercise  of  power  vested  in  it  has  provided  by  a  local  option  law 
as  to  the  manner  of  holding  an  election  thereunder  this  will  control 
over  a  general  election  law  in  so  far  as  it  conflicts  with  the  latter.88 
But  a  local  option  election  should  be  held  in  conformity  to  the 


84.  Savage  v.  Wolfe,  69  Ala.  569.  question  as  provided  by  statute.    Peo- 

85.  Wynne  v.  Williamson,  94  Ga.  pie  ex  rel.  Muckle  v.  Board  of  Ex- 
603,  20  S.  E.  436.  cise,  Town   of   Brownswick,    13   Misc. 

86.  Dawson  v.  State,  25  Tex.  App.  R.  (N.  Y.)  537,  35  N.  Y.  Supp.  659. 
670,  8  S.  W.  820.  Law    will    not    operate    retro- 

87.  Ex  parte  Eeyman,  45  Tex.  Cr.  actively.— Where  after  the  holding  of 
532,  78  S.  W.  349,  holding  that  where  a  local  option  election  a  law  is  passed 
the  legislature  designates  the  local-  which  simply  provides  as  to  the  inan- 
ities by  name  which  may  vote  upon  ner  of  holding  elections  under  the 
local  option  the  legislature  has  no  local  option  law  it  will  not  be  held 
power  to  combine  two  of  them.  to  have  a   retroactive  effect  so  as  to 

88.  Walker  v.  Mobley  (101  Tex.  affecl  .'lection  already  held.  Aaron  v. 
28),           ,  103  S.  W.  490.  State.  34  Tex.  Cr.  in:1,.  -2\)  S.  W.  207. 

The    question    of    local    prohibition  Calling   of  special  town  meet- 

cannot  be  determined  l>\   the  election  lug  under  New  York  Liquor  Tax  Law. 

of  so-called  no  license  commissioners  See   Matter  of   Sullivan.   30  Misc.  R. 

but  only   by   a   direct    vote   upon   the  (N.  Y. )    682,  64  X.  Y.  Supp.  303. 


456  LOCAL    OPTION    ELECTIONS.  [§   398 

general  election  laws  except  where  it  is  otherwise  provided  in  the 
local  option  law.89  And  where  the  election  is  to  be  in  conformity 
to  the  general  election  law  it  is  essential  to  its  validity  that  it 
be  so  held.11"  And  a  failure  on  the  part  of  officers  to  comply 
with  a  requisite  of  law  that  may  be  essential  in  the  furtherance 
of  an  election  will,  if  the  election  be  a  special  one,  render  it 
nugatory  and  void,  if  thereby,  electors  sufficient  to  have  changed 
the  result  were  deprived  of  the  right  to  vote  at  said  election.91 
It  is  however  decided  that  a  failure  to  comply  with  a  directory 
provision  in  holding  an  election  does  not  invalidate  it  where  the 
election  was  in  all  other  respects  free  and  fair.92  And  where 
an  election  is  ordered  for  a  district  the  fact  that  the  voters  at 
one  of  the  precincts  decline  to  hold  the  election  deciding  to  leave 
the  matter  to  the  voters  of  the  other  precinct  does  not  render 
the  election  void,  the  matter  of  holding  the  election  being  optional 
with  such  voters.93  Such  an  election  cannot  be  held  without 
some  machinery  having  been  provided  for  the  holding  of  it  and 
this  must  be  done  by  the  proper  officials  to  render  it  valid.94 

§  398.  Same  subject — as  to  the  election  officials. 

"Where  it  appears  from  the  record  that  officers  were  duly  ap- 
pointed to  hold  an  election  it  will  be  presumed  that  it  was  held 
by  them.95     And  that  persons  who  were  qualified  to  hold  the  elec- 

89.  Ex    ]>arte    Kennedy,     23     Tex.  it    was    held    at    another    place    near 

App.  77,  3  S.  W.  114.  at    hand,     if    persons    attending    the 

»0.  State    v.    Swearingen,    128    Mo.  election  at  the  latter  place  would  be 

App.   605,   107   S.  W.   1.  seen    from    the    former    place    and    it 

91-  Ex    parte    Kennedy,     23     Tex.  did  not  appear  that  any  one  was  mis- 

App.  77,  3  S.  W.  114.  led.     Bordwell  v.  State,  77  Ark.  161, 

!»iJ.  Puekett  v.  Snider,  22  Ky.  Law  91  S.  W.  555. 

Rep.    1718,    01    S.    W.    277:    State   v.  »3.  Ex  parte  Schilling,  38  Tex.  Cr. 

Swearingen,    128    Mo.   App.   605,    107  287,  42  S.  W.  553. 

S.  \v.   1.  °4-  Police      Jury      of      Parish      of 

Place   of  holding   election.— An  Tangipahoa     v.     Town     Ponchatoula, 

election  has  been  held  to  he  not  void  118  La.  138,  42  So.  725. 

becau<-<-  instead  of  being  held  at  the  !>r>.  james  v.    State,   21    Tex.   App. 

place  lawfully  fixed  for  that  purpose,  353,   17   S.  W.  422. 


§§399,400]  LOCAL   OPTION    ELECTIONS.  457 

tion  failed  to  take  and  subscribe  the  oath  required  by  law  i 
not  affect  the  validity  of  an  election  it  not  appearing  that  by 
reason  of  such  failure  the  result  was  different  from  what  it  would 
have  been  had  such  persons  been  duly  sworn.96  An  election  may 
be  invalidated  by  fraudulent  conduct  on  the  part  of  the  judges  in 
conducting  the  election.07 

§  399.  Same  subject— as  to  the  hours  polls  are  open. 

Though  the  polls  may  not  be  open  the  entire  time  prescribed  by 
the  statute  the  election  will  not  on  such  account  be  held  void  it 
not  appearing  that  any  voter  was  thereby  deprived  of  an  oppor- 
tunity to  vote.98  It  may  be  stated  generally  however  that  the 
polls  should  be  open  for  the  length  of  time  prescribed  by  law.00 
And  in  case  of  a  wide  departure  from  the  provisions  of  the  statute 
as  to  the  hours  of  opening  and  closing  the  polls,  the  election  will 
not  be  held  valid  on  the  ground  that  such  provisions  are  merely 
directory.1 

§  400.  Same  subject — as  to  the  voters. 

The  fact  that  persons  voted  who  were  not  qualified  to  vote  be- 
cause of  failure  to  pay  their  poll  tax  will  not  invalidate  the 
election  in  the  absence  of  a  showing  that  by  excluding  such  votes 
the  result  would  have  been  different.2  And  where  the  payment  of 
a  poll  tax  is  a  condition  precedent  to  the  right  to  vote  it  will  be 
presumed  in  the  absence  of  evidence  to  the  contrary  that  a  voter 
produced  the  proper  evidence  before  the  judge  of  election  that  he 
had  paid  such  tax  in  accordance  with  law  or  else  he  would  not 

og.  Jossey  v.   Speer,   107  Ca.  828,  v.   Hasbrouck,  21   Misc.  R.    (N.   V.) 

33  S.  E.  718.  188,   17  \.  Y.  Supp.  109. 

97.  Freeman    v.    Lazams,    61     Ark.  !»!»-  Stale    v.    Drake.    83    Wis.    257, 

247.  32  S.  W.  680.  53  X.  W.    196. 

J>s.  Hoover  v.  Thomas.  35  Tex.  Civ.  '•  Savage   v.   Umphries    (Tex.  Civ. 

App.  535,  SO  S.  W.  859.  App.   1909),   118  S.  W.  893. 

Closing   the   polls   before    sun-  -•  Hoover  v.  Thomas,  35  Tex.  Civ. 

set    does    not    invalidate.— People  App.   535,   80   S.    W.   859. 


45S  LOCAL    OPTION    ELECTIONS.  [§§   401,402 

have  been  permitted  to  vote.3  But  a  failure  to  require  persons  to 
show  poll  tax  receipts  does  not  avoid  an  election  it  not  appearing 
that  the  ballots  of  such  persons  caused  the  election  to  result  as  it 
did.4  Again  a  ballot  by  one  whose  name  appeared  upon  the 
"  voters  book  "  should  not  be  rejected  from  the  count  because  the 
voter  was  not  at  the  time  of  his  signing  his  name  in  that  book, 
entitled  to  do  so,  if  prior  to  the  election  he  removed  his  disquali- 
fication and  lawfully  procured  the  registers  to  place  his  name 
upon  the  list  of  registered  voters.5 

§  401.  Same  subject — as  to  the  ballots  and  ballot  boxes. 

Mere  irregularities  in  connection  with  the  holding  of  an  election 
such  as  having  fewer  ballot  boxes  than  is  usual  will  not  invalidate 
the  election  where  it  appears  there  was  a  full,  free  and  fair  ex- 
pression of  the  voters.6  And  irregularities  in  connection  with  the 
casting  of  the  ballots  do  not  vitiate  an  election  unless  the  result 
has  been  thereby  affected.7  So  placing  the  ballot  in  the  wrong  box 
is  held  not  to  render  the  ballot  void.8  And  in  this  connection  it  is 
decided  that  a  statute  requiring  voters  to  cast  votes  for  local 
option  in  one  box  and  those  against  it  in  another  is  unconstitu- 
tional, as  it  deprives  voters  of  the  privilege  of  secrecy  of  the  ballot.9 

§  402.  As  to  the  ballots  continued. 

As  a  general  rule  the  ballot  should  conform  to  the  require- 
ments of  the  law  in  regard  thereto.10     So  where  the  law  requires 

3.  Savage  v.   Umphries    (Tex.   Civ.  Commissioners,  60  Conn.  339,  22  Atl. 

App.  1909),  118  S.  W.  893.  847. 

i.  Slinson  v.  Gardner,  97  Tex.  287,  »•  State  ex  rel.  Buchmore  v.  State 

78   S.   W.   402.  Bord  of  Canvassers,  78  S.  C.    461,  59 

•"..  Drake  v.  Drewry,   112  Ga.   308,  S.  E.   145. 

37  S.  E.  432.  10-  Griffin    v.    Tucker    (Tex.    S.    C. 

6.  Roper  v.   Rcurlock,  29  Tex.  Civ.  1909),  118  S.  W.  035. 

App.   464,   0!)    S.   W.   456.  Sufficiency  of  ballots.— See  Leh- 

7.  State  ex  rel.  Buchmore  v.  State  man  v.  Porter,  73  Miss.  210,  18  So. 
Board   of   Canvassers,   78    S.   C.   461,       920. 

59  S.  E.  145.  Ballots  containing  the  words  "  For 

s.  Donovan     v.     Fairfield     County       prohibition "    and    "  against    prohibi- 


§  403]  AL   OPTION    ELECTIO  i;,!» 

that  all  ballots  shall  be  printed  on  white  paper  so  thick  that  tin- 
printing  cannot  be  distinguished  from  the  back  if  ballots  are 
used  which  do  not  substantially  comply  with  the  law  the  election 
is  not  conducted  as  required  and  is  invalid.11  And  the  ballots 
should  be  marked  as  provided  by  statute.12  So  when-  the  statutes 
requires  that  the  ballots  shall  be  printed  or  written  "  For  license  " 
or  "Against  license"  a  ballot  marked  "  No  whisky  "  is  informal 
and  irregular.13  It  is  however  decided  that  a  ballot  should  1"' 
counted  if  from  it  the  wish  or  will  of  the  voter  can  be  ascer- 
tained.14 And  where  a  local  option  law  provides  for  the  form  oi 
ballots  to  be  used  thereunder  it  should  be  followed  and  the  ballot 
is  sufficient  if  this  is  done  and  further  requirements  in  a  general 
law  such  as  to  the  signature  of  some  election  official  being  affix*  d 
thereto  need  not  be  followed.15  Where  a  ballot  appears  to  have 
been  mutilated  the  presumption  arise  that  the  mutilation  took 
place  after  the  election  officers  had  counted  it.lc 

§  403.  Returns  of  election — certification. 

Where  the  returns  made  by  the  inspectors  of  election  bear  date 
as  of  the  day  on  which  the  election  was  held  it  will  be  presumed 
that  they  prepared  the  same  "  without  recess  or  adjournment  "  as 

tion"  have  been  held  sufficient.     Po-  13.  Walker    v.    Mobley      101     Tec 

lice  Jury   of   Parish   of   Avoyelles   v.  28,    103    S.  W.  490. 

Descant,  105  La.  512,  29  So.  976.  See   also    Ex    parte    Anderson,    51 

Form  of  ballot  for  local  option  Tex.  Cr.  239,   102  S.   W.   727,  holding 

in   New    York.— See   Matter   of   Ar-  that    the     failure    of    the    presiding 

nold,    32    Misc.   R.    (N.   Y.)    439,   6G  judge    to    sign    his    name    upon    the 

N.  Y.  Supp.  557.  ballots  will  not  of  itself  invalidate  the 

11.  Nail   v.   Tinsley,   107   Ky.  4  11,      election. 

_.  „    ,v    .o-  Compare    Brigance    v.    Holock,    44 

m    ,  _:         Tex.   Civ.   App.   277,  97   S.   W.   1060, 

12.  Griffin    v.    Tucker     (Tex.    Civ.  ' 

m  dm<_r    that    a    provision    (hat    the 
App.  1909).  119  S.  W.  338.  .  .?        .     ,  .  .     .. 

ir  presiding    judge  oi   an   election   mu-t 

13.  Prestwood  v.  Borland.  92   Ala.       Bign  th(,  ,,.,„,,,  ;lIU,  providil,g  that  no 

599.  9  So.  223.  ballot   shall  be  counted  which  is  not 

14.  State   v.   Bossa,   69   Conn.   335,       bo  signed  is  mandatory. 

37   Atl.  977.  I»8.  Savage  v.  Umphries   (Tex.  Civ. 

App.  1909) .  118  S.  W.  S93. 


460 


LOCAL    OPTION    ELECTIONS. 


[§  403 


required  by  law.17  But  a  failure  to  canvass  the  vote  in  time  pre- 
scribed in  the  statute  is  held  not  to  invalidate  the  election.18  And 
the  addition  to  the  certificate  made  of  the  canvass  of  a  signature 
of  a  person  not  authorized  to  sign  it  does  not  vitiate  the  action  of 
such  board.19  Xor  will  a  failure  of  inspectors  to  state  in  their 
return  the  number  of  void  ballots  invalidate  the  election  where 
such  ballots  were  enclosed  as  the  statute  directed  in  a  sealed  pack- 
age and  filed  with  a  statement  of  the  canvass.20  And  the  consider- 
ation by  the  board  of  supervisors,  in  determining  the  result  of  an 
election,  of  illegal  returns  from  certain  townships,  will  not  invali- 
date the  election,  where  the  exclusion  of  such  returns  will  not 
destroy  the  majority  in  favor  of  the  proposition  submitted  to  the 
electors.21  Again  though  the  statute  requires  that  a  certified 
copy  of  the  statement  of  the  result  shall  be  filed  by  the  town  clerk 
with  the  county  treasurer  a  failure  to  do  so  will  not  defeat  the 
will  of  the  voters  and  a  license  is  properly  refused.22     Where  it  is 


17.  Giddings  v.  Wells,  99  Midi. 
221,  58  N.  W.  64. 

18.  State  v.  Mackin,  51  Mo.  App. 
299. 

lf>.  People  ex  rel.  Guernsey  v. 
Pierson,  35  Mise.  R.  (N.  Y.)  406,  71 
N.  Y.  Supp.  993. 

20.  People  ex  rel.  Guernsey  v. 
Pierson,  35  Misc.  R.  (N.  Y.)  406,  71 
X.  Y.  Supp.  993. 

21.  Giddings  v.  Wells,  99  Mich. 
221,   58   N.   W.   64. 

22.  Matter  of  Krumbholz,  60  Misc. 
R.  (N.  Y.)  534,  113  N.  Y.  Supp. 
1060. 

The  town  clerk  under  the  New 
York  Law  is  not  confined  thereby  to 
any  particular  form  in  making  his 
certificate  of  the  result.  People  ex 
rel.  Smith  v.  Foster,  27  Misc.  R. 
(N.  V.)  576,  58  N.  Y.  Supp.  574. 
See  People  ex  rel.  Clint  v.  Ham- 
ilton, 27  Misc.  R.  (N.  Y.)  360,  58 
X.  Y.  Supp.  959,  as  to  an  insufficient 
certificate. 


A  statement  of  a  town  clerk  as 
to  the  result  of  an  election  where  he 
came  into  office  a  considerable  time 
after  such  election  was  held  is  a 
nullity  and  the  determination  of  the 
board  of  canvassers  will  in  such  a 
case,  be  regarded  as  binding  upon  a 
justice  of  the  Supreme  Court  in  a 
proceeding  before  him  to  cancel  a 
certificate.  Matter  of  Brown,  38 
Misc.  R.  (N.  Y.)  157,  77  N.  Y.  Supp. 
261. 

The  county  treasurer  has  no  power 
to  pass  upon  the  validity  of  the  certi- 
ficate of  the  town  clerk  of  the  result. 
People  ex  rel.  Smith  v.  Foster,  27 
Misc.  R.  (N.  Y.)  576,  58  N.  Y.  Supp. 
574;  See  People  ex  rel.  Clint  v.  Ham- 
ilton, 27  Misc.  R.  (N.  Y.)  360,  58 
N.  Y.  Supp.  959,  as  to  an  insufficient 
certificate. 

Jurisdiction  to  license  not  de- 
pendent on  making  of  returns. — 
Under  a  statute  providing  that  if  the 


LOCAL   OPTION    ELECTIONS. 


■Hil 


§   404] 

tho  duty  of  officials  merely  to  receive  and  keep  in  their  custody 
the  official  returns  of  an  election  such  duty  involves  do  consider- 
ation by  them  of  the  legality  of  the  election  and  does  not  permit 
them  to  raise  the  question  of  legality  as  a  reason  for  not  perform- 
ing their  duty.23  And  where  officials  exceed  their  authority  and 
declare  an  election  void  and  order  a  second  election  the  latter  will 
be  regarded  as  void.21  Where  the  election  is  a  void  one  mandamus 
will  not  issue  to  compel  a  canvas  of  the  votes  and  determination  of 
the  result.-"  Jn  Michigan  the  determination  of  the  canvas-in- 
board of  the  result  is  final.26  In  Mississippi  certification  of  the 
returns  of  a  local  option  election  by  a  majority  of  the  commis- 
sioners is  held  sufficient.27 


§  404.  Order  declaring  result  of  election — presumption  as  to 
preliminary  steps. 
An  order  declaring  the  result  of  an  election,  and  putting  local 
option  in  force,  is  prima  facie  evidence  that  all  of  the  preliminary 
steps  have  been  taken  prior  to  the  issuance  of  the  order.28  So 
where  such  an  order  has  been  made  it  will  be  presumed  that  the 


majority  of  the  votes  cast  at  a  gen- 
eral election  upon  the  question  as  to 
wlicl  her  license  to  sell  liquors  shall 
be  for  license  "  then  it  shall  be  law- 
ful for  the  county  court  to  grant  li- 
censes "  the  jurisdiction  <>f  the  county 
court  depends  upon  the  result  of  the 
election,  and  nol  upon  whet  her  the 
board  of  election  commmissioners 
made  return  of  the  elect  inn  upon  this 
question  to  the  county  court.  Bord- 
well  v.  State,  77  Ark.  161,  91  S.  \V. 
555. 

23.  County  Commissioners  of 
Franklin  County  v.  State  ex  rel. 
Patton.  24  Fla.  55,  3  So.  471. 

24.  Burks  v.  State  51  Tex.  Cr.  637, 
103  S.  W.  850. 

-•"•  State  ex  rel.  Smith  v.  Drake,  83 
Wis.  257,  53  N.  W.  496. 


2G.  The  Determination  of  the  can- 
vassing board  under  the  Michigan 
statute  is  final.  Haehnle  Brew.  Co. 
v.  Board  of  Supervisors  of  Jackson 
County  156  Mich.  493,  121  N.  W. 
209. 

27.  Bain  v.  State.  67  Miss.  554.  7 
So.  408,  citing  opinion  of  the  Jus- 
tices, 68  Me.  587. 

28.  State  v.  Carmody  50  Oreg. 
1,  91  Pac.  446;  1081  Neal  v.  State, 
51  Tex.  Cr.  513,  102  S.  W.  1139;  Em 
parte  Schilling,  38  Tex.  Cr.  287,  4-2 
S.  \Y.  553;  Chapman  v.  State.  37 
Tex.  Cr.  167,  39  S.  W.  113;  Morton 
v.  state.  37  Tex.  Cr.  131,  38  S.  W. 
1019;  Bunce  v.  Stale,  36  Tex.  Cr.  53, 
39  S.  \Y.  683;  Irish  v.  State.  ;54  Tex. 
Cr.  130,  29  S.  W.  778. 


462  LOCAL    OPTION    ELECTIONS.  [§§   405  406 

proper  notice  of  election  required  by  law  was  given.29  And  though 
an  order  declaring  the  result  does  not  show  that  the  court  opened 
the  polls  it  will  be  inferred  that  they  were  opened  where  it  shows 
that  the  votes  were  counted  and  tabulated.30 

§  405.  Sufficiency  of  order  declaring  result. 

Where  an  election  results  in  favor  of  prohibition  an  order  de- 
claring the  result  is  sufficient  if  it  states  that  fact  and  prohibits 
the  sale  of  intoxicating  liquors,  except  for  certain  purposes  speci- 
fied in  the  statute,  within  the  limits  of  the  county.  The  duration 
of  the  prohibition  need  not  be  stated  that  being  fixed  by  law.31 
The  order  declaring  the  result  of  an  election  need  not  however 
state  therein  the  exceptions  as  to  sales.32  A  certificate  of  the 
judge  declaring  the  result  of  an  election  should  to  render  it  ad- 
missible in  evidence  state  the  date  of  the  publication  of  the  order 
putting  prohibition  in  force  as  otherwise  supplementary  evidence 
showing  such  date  is  necessary  to  render  it  admissible.33  The 
officials  upon  whom  the  duty  is  imposed  of  declaring  the  result  of 
an  election  have  a  right  to  presume  that  the  certificate  to  the  re- 
turns made  by  the  election  officers  are  correct  and  need  not  open 
the  boxes  and  count  the  votes.34  And  the  jurisdiction  being  shown 
by  a  valid  record  and  canvass,  the  determination  of  the  board  as 
to  the  result  of  a  local  option  election  is  final.35 

§  406.  Same  subject — errors  in  connection  with. 

Where  by  a  clerical  error  the  order  declaring  the  result  of  an 
election  shows  less  than  a  majority  for  prohibition  while  the  con- 

29.  Neal  v.  State,  51  Tex.  Cr.  513,  33.  Loveless  v.   State,  40  Tex.   Cr. 

102  S.  W.  1139.  221,  49  S.  W.  892. 

:'.<>.  Sinclair   v.    State,   45  Tex.   Cr.  34.  Roper  v.  Scurlock,  29  Tex.  Civ. 

487,  77  S.  W.  621.  App.  464,  69  S.  W.  456. 

81.  Lipari   v.   State,    19   Tex.   App.  35.  Thomas    v.    Abbott,    105    Mich. 

431.  687,  63  N.  W.  984. 

32.  Chapman  v.  State,  37  Tex.  Cr.  In    New    York    the    certificate    of 

167,  39  S.  W.  113;  Ex  parte  Perkins,  county     treasurer     as     to     result     is 

34  Tex.  Cr.  429.  31  S.  W.  175.  deemed  presumptively  correct  and  the 


§§  407,408]  LOCAL   OPTION    ELE<  CIONS. 

tray  is  apparent  from  the  other  part:-;  of  such  order  it  i- 
thereby  invalidated.86  And  when-  the  bounds  are  di  finiti  ly  and 
sifically  set  out  both  in  the  order  for  and  declaring  the  result 
of  an  election  it  is  immaterial  that  the  territory  is  called  by  a 
name  which  is  no1  correct.87  So  a  delay  in  certifying  the  result 
which  is  not  unreasonable  under  the  circumstances  will  not  avoid 
the  election.38  Again  an  election  is  not  rendered  void  by  the  fact 
that  the  court  declaring  the  result  had  no  authority  to  so  act.39 

§  407.  Same  subject — record  as  to. 

Where  the  proper  resolutions  have  been  passed  putting  local 
option  into  force  in  a  county  neglect  of  the  county  clerk  who  acts 
in  a  ministerial  capacity  in  recording  the  resolutions  does  not 
invalidate  the  election.40  So  failure  of  the  clerk  to  properly 
certify  the  copy  of  the  order  declaring  the  result  entered  on  the 
minutes  by  the  judge  does  not  affect  the  entry.41  And  though  it 
is  the  duty  of  the  county  judge  to  make  an  entry  of  the  order  de- 
claring the  result,  the  fact  that  such  entry  was  made  by  his  suc- 
cessor in  office  does  not  render  such  entry  objectionable.42 

§  408.  Result  of  election— where  statute  requires  publication  of. 

In  several  states  where  local  option  laws  have  been  passed  the 
statute  contains  a  provision  that  there  shall  be  a  publication  of  the 
result  of  the  election.43  And  where  publication  of  an  order  de- 
result  as  shown  thereby  should  be  3*>-  Chapman  v.  State,  37  Tex.  Cr. 
upheld.  People  ex  rel.  Lasher  v.  167,  39  S.  W.  113. 
Adair,  44  Miso.  R.  (N.  Y.)  444,  89  <*o.  Madill  v.  Common  Council 
N.  Y.  Supp.  576.                                             of  City  of  Mi. Hand.     L56     Mich.     •">'''■ 

™.  Ex  parte  Burrage,  26  Tex.  App.       120  X.  W.  355. 
35,  9  S.  \Y.  72.  41-  Drechsel   v.   State,   35  Tex.  Cr. 

■'-.  Jordan    v.    State,    37    Tex.    Cr.       577,  34   S.   W.  932. 
222,   38    S.   W.   780,    39    S.    W.    110,  <-•   Barham   v.   State,   41    Tex.   Cr. 

following  Kelley  v.  State,  37  Tex.  Cr.       IRS.  53  S.  W.  109. 
220,  38  S.  W.  779.  39  s-  W.  111.  As  to  publication  of  result  of  elec- 

38.  State  v.  Mackin,   51   Mo.  App.      tion    see    Drechsel    v.    Stat.-,    35   Tex. 
299.  Cr.  577,  34  S.  W.  932;  Wesl  v.  State, 

35  Tex.  Cr.  48,  30  S.  W.   1069. 


4(J4  LOCAL    OPTION    ELECTIONS.  [§   409 

claring  the  result  of  an  election  is  required  by  statute  it  must  be 
made.44  Such  a  provision  is  held  to  be  mandatory  and  a  condi- 
tion precedent  to  the  binding  force  of  the  law.45  In  Texas  the 
county  judge  must  select  the  newspaper  for  publication  of  the 
result  though  the  order  of  the  commissioners  court  does  not  re- 
quire him  to  do  so.46  But  though  an  official  is  authorized  to 
designate  a  newspaper  for  the  publication  of  the  order  therein 
the  fact  that  the  order  of  publication  does  not  specify  any  par- 
ticular newspaper  does  not  invalidate  such  order.47  And  a  mis- 
recital  by  the  clerk  in  the  proclamation  of  the  result  as  to  the 
date  of  the  order  for  election  will  not  invalidate  the  election.48 
Again  an  authorized  publication  in  one  newspaper  of  the  order 
declaring  the  result  does  not  invalidate  a  legal  publication  in  an- 
other paper.49 

§  409.  Result  of  election — publication  for  four  successive  weeks. 
A  requirement  that  the  order  declaring  the  result  shall  be  pub- 
lished for  four  successive  weeks  means  for  twenty-eight  days.50 
And  it  may  be  shown  that  the  publication  of  the  order  for  three 
successive  weeks  as  required  by  statute  was  prevented  by  an  in- 
junction restraining  such  publication.51  So  a  statute  requiring 
publication  of  the  result  of  an  election  is  sufficiently  complied  with 
where  there  is  a  publication  for  three  successive  weeks  when  the 


44.  Jones  v.  State,  38  Tex.  Cr.  533,  of  the  resolution  of  prohibition  is  to 

43  S.   W.   981.  be  made.     Moran  v.  Darby,  97  Mich. 

43.  Toole  v.   State,  88   Ala.   158,   7  180,   56   N.   W.   347. 

So.  42.  48.  Winston  v.   State,   32  Tex.  Cr. 

40.  Johnson   v.    State,   52   Tex.   Cr.  59,  22  S.  W.  138. 

624,   108   S.  W.  083.  4J>.  Wright   v.    State,    36    Tex.    Cr. 

47.  Sinclair  v.    State,   45   Tex.    Cr.  35,   35    S.   W.   287. 

487,  77   S.  W.   621.  50.  Phillips  v.  State,  23  Tex.  App. 

The  record  of  the  proceedings  304,  4  S.  W.  893.     See  also  Williams 

of  Ihe  board  of  supervisors  in  order-  v.  State,  53  Tex.  Cr.   156,   109  S.  W. 

1  declaring  the  result  of  an  elec-  189. 

tion  is  fatally  defective  if  it  contains  51.  Truesdale  v.  State,  42  Tex.  Cr. 

no   designation    by   the   board   of   the  544,  61  S.  W.  935. 
newspaper    in    which   the    publication 


§§410,411]  LOCAL    OPTION     ELECTIONS.  465 

publication  is  suspended  by  an  injunction  subsequently  dissolved, 
the  fourth  publication  being  made  immediately  thereafter.52 

§  410.  Result  of  election — statute  silent  as  to  time  or  manner  of 
publication. 
"Where  a  statute  r<  quires  the  giving  of  a  notice  of  the  result  of 
an  election  but  prescribes  do  time  within  which  it  must  be  given 
it  will  be  construeil  as  meaning  within  a  reasonable  time,  the  facts 
and  circumstances  in  connection  with  the  case  being  taken  into 
consideration.53  And  where  there  is  no  provision  as  to  the  man- 
ner of  publication  it  has  been  decided  that  a  verbal  proclamation 
may  be  sufficient.54 

§  411.  Result  of  election — presumption  and  evidence  as  to  publi- 
cation. 
In  the  absence  of  evidence  to  the  contrary  it  will  be  presumed 
that  the  result  of  the  election  was  publicly  announced  by  one  of 
the  judges  at  the  close  of  the  polls  as  required  by  statute.55  And 
the  record  relating  to  the  adoption  of  the  local  option  law  need  not 
show  a  return  of  the  publication  of  the  result,  where  it  shows  the 
publication  was  ordered  and  the  burden  to  show  a  failure  of  such 
publication  is  on  the  defendant.50  So  the  fact  that  the  county 
judge  certifies  that  publication  of  the  result  of  an  election  was 

52.  Ex  parte   Brown,    35   Tex.   Cr.  55.  Puckett  v.  Snider,  110  Ky.  261, 
433,  34  S.  W.  131  ;  McDaniel  v.  Slate,      Gl  S.  W.  277. 

32  Tex.  Cr.   16,  21   S.  W.  684,  23  S.  56.  State  v.  Bush.    13G     Mo.   App. 

YV.  9S9.  608,    118     S.   W.   670;    State   v.   Oli- 

53.  State   v.    Weeks.    38    Mo.    App.  pliant.   12s  Mo.  App.  252,   107  S.  W. 
5G6.  32;   State  v.  O'Brien,  :;:.   Mont.    ls_>. 

54.  a    proclamation    at    the    court  00  Pac.   514. 

house  don,-  "that  the  local  option  :'.2 :  state  v.  Oliphant,  128  Mo.  App. 
bad  carried  and  thai  the  major-  252,  107  S.  W.  32;  state  v.  O'Brien, 
ity  of  votes  were  againsl  the  sale  of  :!.".  Mont.  4S-j.  90  Pac.  514. 
intoxicating  liquors,"  has  been  held  Proof  of  publication  of  result. 
a  sufficient  proclamation  of  the  re-  — Sec  State  v.  Swearingen,  128  Mo. 
suit  where  the  statute  prescribes  no  App.  605,  1<>7  s.  \\".  l.  Proof  of  pub- 
manner.  Mackin  v.  State.  62  Md.  lication  of  result  under  the  Texas 
044.  statute  see  Johnson  v.  Stat".  .".2  Tex. 


4GG 


LOCAL    OPTION    ELECTIONS. 


[§  412 


made,  in  the  absence  of  anything  to  the  contrary  will  be  sufficient 
proof  that  the  same  was  made  in  a  newspaper  selected  by  him  and 
under  his  direction.57  Again  where  by  law  the  publication  of 
result  need  only  be  in  one  paper  an  offer  of  proof  is  not  specific 
enough  which  is  an  offer  to  show  that  publication  was  not  made  in 
all  the  papers  and  is  not  confined  to  showing  that  publication  was 
not  made  in  any  of  them.58 

§  412.  Contest  of  election — nature  of  right — statutes. 

The  right  to  contest  an  election  is  frequently  provided  for  by 
the  local  option  statute.59  And  where  there  is  no  statutory  au- 
thorization it  is  decided  that  courts  have  no  jurisdiction  to  enter- 
tain election  contests.60     So  in  a  recent  case  it  is  declared  that 


Cr.  624,  108  S.  W.  683;  Gorman  v. 
State,  52  Tex.  Cr.  327,  106  S.  W.  384 ; 
Walker  v.  State,  52  Tex.  Cr.  293,  106 
s.  \V.  376;  Ezzell  v.  State,  29  Tex. 
App,   521,    16   S.   W.   782. 

57.  Johnson  v.  State,  52  Tex.  Cr. 
624,   108   S.   W.   683. 

58.  State  v.  O'Brien,  35  Mont.  482, 
90  Pac.   514. 

Publication  of  result  in  one  news- 
paper held  sufficient  in  Texas. 
Wright  v.  State,  37  Tex.  Cr.  3,  35 
S.   W.   150,   38   S.   W.  811. 

59.  Contest  an  action  in  rem.— 
The  contest  of  an  election  is  an  ac- 
tion  in  rem  and  not  in  personam. 
Evans  v.  State,  55  Tex.  Cr.  450, 
117  S.  W.   167. 

The  legislature  may  provide  that 
if  a  contest  of  a  local  option  election 
is  not  filed  within  sixty  days  from 
the  time  of  the  law  taking  effect,  the 
election  will  be  conclusively  presumed 
to  he  valid.  Coats  v.  Blanding  (Tex. 
Civ.  App.  1910),  125  S.  W.  627. 

Recount  of  votes  does  not  pre- 
clude.— The  recount  of  the  votes  of 
:i  township  by  Hie  election  commis- 
sioners  in  an  election  on  the  license 


question  does  not  preclude  a  contest 
of  the  election  in  the  courts.  Free- 
man v.  Lazarus,  61  Ark.  247,  32  S.  W. 
680. 

<>«►•  Nissen  v.  Farquhar,  121  La. 
041.  46  So.  679.  See  also  Hagens  v. 
Police  Jury  of  Caddo  Parish,  121  La. 
634,  40   So.   6/6. 

The  extent  of  the  power  to 
consider  an  election  contest  is 
limited  by  the  terms  of  the  statute 
conferring  the  power.  The  proceed- 
ing is  a  special  one  and  the  tribunal 
exercising  auch  jurisdiction  does  not 
proceed  according  to  the  course  of 
the  common  law  but  must  resort  to 
the  statute  alone  to  ascertain  its 
powers  and  mode  of  procedure.  So 
where  a  local  option  statute  con- 
tained no  provision  as  to  contesting 
elections  thereunder  but  contained  a 
1  provision  that  in  all  elections 
thereunder  and  in  all  matters  and 
proceedings  therein  specified  the  pio- 
visions  of  the  general  election  laws 
of  the  state  should  apply  and  under 
the  latter  only  election  contests  were 
provided  Un-  which  involved  the  right 
or   title  to   an   office   it   was    decided 


§    113]  LOCAL    OPTION     ELECTIONS.  KI7 

election  contests  are  statutory  and  that  in  th<  of  a  statute 

permitting  them  there  can  be  no  such  contests,  and  thai  where  a 
statute  attempts  to  authorize  them  but  there  are  materia]  omissi 
rendering  it  inoperative  the  couri  will  nol  cure  the  defect  by 
supplying  the  needed  parts.61  The  contest  is  a  special  proceeding 
and  the  courts  are  limited  in  their  investigation  to  such  3ubj 
as  are  specified  in  the  statute.62  So  in  Georgia  it  has  been  decided 
that  the  jurisdiction  of  the  Superior  ( 'ourt  in  cases  of  a  contest  of 
a  local  option  election  is  limited  to  matters  involved  in  the  true 
ascertainment  of  the  result  of  the  election.03  The  right  of  appeal 
in  such  a  case  is  statutory  and  a  statute  making  the  determination 
of  a  certain  court  final  does  not  violate  the  Fourteenth  Amend- 
ment to  the  United  States  Constitution.64  And  an  election  con- 
test is  not  a  "  cause  "  within  the  meaning  of  a  constitutional  pro- 
vision that,  in  all  "  causes  "  in  a  certain  court  the  plaintiff  or  de- 
fendant shall  be  entitled  to  a  trial  by  jury.65 

§  413.  Contest  of  election — proceedings. 

Where  parties  seek  to  contest  the  validity  of  an  election  the 
facts  which  are  relied  upon  should  be  set  forth  specifically.66  And 
persons  contesting  an  election  on  the  ground  that  some  of  the  votes 
cast  were  illegal  have  the  burden  of  establishing  such  fact.67     The 


that  there  was  no  authority  for  hear-  66.  Oxley  v.  Allen    (Tex.  Civ.  App. 

ing  a    contesl    involving  the   validity  1908),    107    S.    W.    945,    holding    it 

of  a  local  option  election.     Bradburn  not  sufficient  to  allege  that  by  reason 

v.   Wasco  County    (Oreg.    l!»10),   106  of    the    irregularity    stated    a     large 

Pac.  1018.  number    of    voters    were    denied    the 

61.  Kehr  v.  Columbia    (Mo.  1909),  privilege  of  voting  but  that  the  num- 
116   S.  W.   428.  ber  and  names  of  such  persons  should 

62.  Cofield    v.    Britton    (Tex.    Civ.  be   alleged   or   sonic   sufficient   excuse 
App.   1908),  109  S.  W.    193.  for  not  alleging  them. 

63.  Harris    v.     Sheffield,     12S    Ga.  67.  McCormick  v.  Jester  (Tex.  Civ. 
299,   r.7    s.   E.   305.  App.   inns,.    11;,   s.  \V.  278. 

64.  Savior    v.    Duel.    236    111.    429,  In   New   York   it    is  decided   that 
86  X.   K.  119.  if    a    town    vote    or    local    option    is 

<:•".  McCormick  v.  Jester  (Tex.  Civ.  illegal    and   of   no   effect    the   parties 

App.  1908),  115  S.  W.  278.  seeking  to  invalidate  the  election  must 


468 


LOCAL  OPTION  ELECTIONS. 


[§   413 


proceedings  to  contest  an  election  are  ordinarily  provided  for  by 
the  statute  and  where  this  is  the  case  there  should  be  a  compliance 
therewith.68  ^Yhere  the  law  provides  a  remedy  for  contesting  a 
local  option  election  any  other  proceeding  is  held  to  be  excluded 
unless  it  might  be  by  an  injunction  as  ancillary  to  the  main  pro- 
ceeding.69 Where  notice  to  the  contestee  of  a  contest  is  required 
by  statute  it  must  be  given.70  And  a  contest  of  such  an  election 
must  be  made  within  the  time  prescribed  by  statute.71  And  after 
the  time  for  filing  a  contest  has  expired  the  matter  of  the  regu- 
larity of  the  election  and  of  all  proceedings  preliminary  thereto 
is  then  at  rest.72 


find  their  redress  under  the  provision 
of  the  Liquor  Tax  Law  that  if  the 
questions  be  not  properly  submitted 
at  the  town  meeting  they  shall  be 
again  submitted  at  a  special  meet- 
ing and  that  the  remedy  is  by  appli- 
cation to  have  the  submission  de- 
clared illegal  and  improper  and  for  a 
resubmission.  Raymond  v.  Clement, 
118  App.  Div.  (N.  Y.)  528,  102  N.  Y. 
Supp.  1070,  aff'd  194  N.  Y.  560,  87  N. 
E.   1126. 

Right  of  appeal  under  Kan- 
sas Rev.  St.  1899,  §  1674,  sub.  4 
(Am.  St.  1906,  p.  1217).  See  Haynes 
v.  Cass  County  Court,  (Mo.  1909), 
115   S.   W.   1084. 

As  to  contest  under  Kentucky 
St.  1909,  §  2500,  subd.  2,  see  Derick- 
v.  Conlee  (Ky.  1909),  117  S.  W. 
955. 

Election  held  void— effect  of 
supersedeas. — Where  an  election  was 
had  and  held  void  by  the  court  and 
after  such  judgment  was  rendered  a 
supersedeas  was  had  and  nn  appeal 
taken  it  was  decided  that  by  the  sup- 
ersede;,-, matters  were  in  the  same 
condition  as  before  the  judment  was 
rendered  declaring  the  election  void 
and  that  a  licensee  to  whom  a  license 


was  issued  after  the  election  and  be- 
fore such  judgment  was  rendered  was 
thereby  protected  until  the  appeal  was 
decided  or  his  license  expired.  Com- 
monwealth v.  Weisenburgh,  126  Ky. 
846,  102  S.  W.  846. 

Right  to  intervene  in  an  election 
contest  under  the  Georgia  Code  See 
Miller  v.  Drake,  113  Ga.  347,  38  S.  E. 
747. 

69.  Ex  parte  Mayes,  39  Tex.  Cr. 
36,  44  S.  W.  831. 

70.  Norton  v.  Alexander,  28  Tex. 
Civ.  466,  67   S.  W.  787. 

Though  service  of  notice  of  a 
contest  should  be  made  on  the  eounty 
attorney  yet  in  the  case  of  his  ab- 
sence from  the  state  it  may  be  made 
on  his  assistant  at  the  county  at- 
torney's office.  McCormick  v.  Je 
(Tex.  Civ.  App.  1908),  115  S.  W.  278. 

Notice  and  service  of  petition  of 
contest  under  Texas  statute  see  Mes- 
ser  v.  Cross,  26  Tex.  Civ.  App.  34,  63 
S.  W.   169. 

71.  Terry  v.  State  (Tex.  Cr.  1000), 
117  S.  W.  801.  Sec  Evans  v.  State 
55    Tex.    Cr.    150,     117  S.  W.  107. 

72.  Cole  v.  Commonwealth,  30  Ky. 
Law  Rep.  385,  98  S.  W.  1002. 


§§414,415]  LOCAL    OPTION    ELECTIONS.  H;;, 

§  414.  Who  may  contest  election. 

In  New  Fori  ii  is  decided  that  the  validity  of  a  town  election 
resulting  against  local  option  is  not  a  matter  which  a  citizen  can 
attack.73  Win  re  however  a  person  has  sufficient  standing  to  at- 
tack an  invalid  town  election  authorizing  local  option  it  is  de- 
cided that  he  is  entitled  to  a  mandamus  compelling  the  canvassers 
and  inspectors  to  reconvene  and  reject  the  ballots  cast  upon  that 
question.74  But  where  a  special  town  meeting  has  duly  and  regu- 
larly passed  upon  the  question  of  local  option,  errors  committed  in 
the  submission  of  then  qu<  -tions  to  a  prior  biennial  town  meeting 
may  be  deemed  to  have  been  rectified,  and,  therefore,  the  court 
will  not  compel  the  board  of  canvassers  to  reconvene  and  reject 
the  local  option  ballots  which  were  cast  at  the  biennial  town  meet- 
ing.75 

§  415.  Resubmission  of  question. 

Under  the  statute  in  New  York  a  resubmission  of  the  question 
may  be  ordered  where  it  was  not  submitted  in  the  first  instance  in 
accordance  with  the  provisions  of  the  statute.70  So  where  the 
notice  includes  a  question  in  addition  to  the  form  provided  for  by 
the  statute  this  fact  is  to  be  considered  as  favoring  a  resubmission 
as  it  may  have  confused  and  misled  the  voters.77  But  a  failure  to 
publish  in  the  newspapers  a  notice  of  a  submission  of  local  option 
questions  to  voters  has  been  held  no  reason  for  setting  aside  tin- 
election  and  resubmitting  the  questions  it  appearing  that  such 
neglecl  had  caused  no  prejudice  and  that  a  full  vote  had  been 
had.78 

"'.i.  People  ex  rel.   Barth  v.  Board  of    Town    Canvassers,    32    Misc.    R. 

of  Town  Canvassers,  32  Misc.  R.   (N.  (N.  V.)   12:5.  66  X.  Y.  Supp.  107. 

Y.i    123,  66  \.  Y.  Supp.  100.  7*;.  Matter  of  Munson,  95  App.  Div. 

74.  People  ex  rel.  Barth  v.  Board  (N.  Y.)  23,  88  X.  Y.  Supp.  509, 
of  Town  Canvassers,  32  Misc.  II.  holding  that  such  order  is  a  court 
(N.    Y.)     123.    66   N.    Y.    Supp.    100.  ov.lcr. 

Compare    People    ■<     rel.    Caffrey    v.  77.  Matter  of   Smith,  44  Misc.  R. 

Mosso,  30   Misc.  R.    (N.   Y.)    164,  63  (N.  Y.)    384,  89  X.  Y.  Supp.  100G. 

N.  Y.  Supp.  588.  78.  Matter  of  CHara,  40  Misc.   R. 

75.  People  ex  rel.  Barth  v.  Board  (X.   Y.)    355,   82    X.    Y.    Supp.   203. 


47()  LOCAL    OPTION    ELECTIONS.  [§§   416,417 

§  416.  Resubmission  of  question  continued— procedure. 

In  resubmitting  the  question  a  compliance  with  the  provisions 
of  the  statute  in  respect  thereto  is  essential.     So  where  a  petition 
for  resubmission  is  required  by  statute  it  is  a  condition  precedent 
thereto.79     And  a  resubmission  is  void  unless  the  petition  therefor 
is  made  by  the  requisite  number  of  voters  as  required.80     And 
where  the  petition  therefor  is  not  filed  until  after  the  time  pre- 
scribed by  statute  therefor  the  refusal  of  the  town  clerk  to  print 
the  ballots  is  held  to  be  justified.81     Where  the  petition  answers 
the  requirements  of  the  statute  the  board  of  supervisors  is   held 
in  Michigan  to  have  no  discretion  which  authorizes  them  to  refuse 
to  call  an  election.82     In  a  proceeding  to  set  aside  the  canvass  and 
return  of  the  votes  cast  at  a  town  meeting  upon  the  excise  questions 
and  for  a  resubmission  of  them  the  town  board  being  the  canvass- 
ing board  is  a  proper  party  to  such  proceeding  as  a  board  and  its 
members  are  proper  parties  as  individuals  and  will  be  allowed  to 
intervene.83     In  the  case  of  an  illegal  resubmission  the  remedy  of 
one  holding  a  certificate  who  is  aggrieved  thereby  is  held  to  be 
by  certiorari  against  the  county  treasurer  for  his  unjustifiable 
refusal  to  issue  him  a  further  certificate  and  not  in  an  application 
for  a  special  town  meeting  and  a  new  submission.84 

§  417.  Conclusiveness  of  declaration  of  result — collateral  attack. 

Where  the  result  has  been   ascertained   and   declared   by  the 

See  People  ex  rel.  Cane  v.  Chandler,  Clerk     of    Town    of    Bambridge,    26 

41  App.  Div.    (N.  Y.)    178,  58  N.  Y.  Misc.  R.   (N.  Y.)  220,  56  N.  Y.  Supp. 

Supp.   794.  64. 

70.  Matter  of  Krieger,  59  App.  Div.  82.  Reefer   v.    Board    of    Supervis- 

(N.  Y.)   346,  69  N.  Y.  Supp.  851.  ors   of    Hillsdale    County,    109    Mich. 

so.  People      ex      rel.      Decker      v.  645,  67  N.  W.  981. 
Decker,  28  Misc.  R.    (N.  Y.)    699,  60  83.  Matter  of  Bertrend,  40  Misc.  R. 

N.  Y.   Supp.   60;   Matter  of  Getman,  (N.  Y.)    536,  82  N.  Y.  Supp.  940. 
28  Misc.   R.    (N.   Y.)    451,   59   N.   Y.  84.  Matter  of  Getman,  28  Misc.  R. 

Supp.    1013.  (N.  Y.)    451,  59  N.  Y.  Supp.  1013. 

81.  People  ex  rel.  Hovey  v.  Town 


<    lis  I  LOCAL    OPTION    ELE<  HONS.  471 

proper  officers  or  tribunal  it  is  conclusive  until  reversed  by  some 
superior  tribunal  and   can   uol    be  attacked   collaterally.86     The 

ascertainment  and  declaration  of  the  result  of  an  election  being 
in  accordance  with  law  it  is  prima  facie  correcl  and  is  concluf 
until  by  a  proper  action  broughl  for  the  purpose  the  true  result 
otherwise  should  be  ascertained  and  declared  by  a  judicial  de- 
termination. It  cannot  be  collaterally  impeached.86  So  where  an 
official  may  order  an  election  without  a  petition  for  that  purpose 
when  the  order  has  been  entered  authorizing  such  an  election  and 
the  election  has  been  held  thereunder  the  order  is  conclusive  and 
the  courts  will  not  go  behind  it.87  Unless  the  result  of  an  election 
is  changed  or  rendered  doubtful  it  will  not  be  set  aside  on  account 
of  mere  irregularities.88  So  the  resolution  of  the  board  of  super- 
visors, adopted  in  conformity  to  law,  and  the  record  thereof  being 
regular,  that  an  election  under  the  local  option  law  has  been  prayed 
for  by  the  requisite  number  of  electors,  is  conclusive  of  the  pre- 
liminary steps  necessary  to  set  the  board  in  motion.89 

§  418.  Judicial  notice  of  adoption — necessity  of  proof  of. 

Although  the  rule  prevails  in  same  states  that  courts  will  take 
judicial  notice  of  the  fact  that  local  option  has  been  put  in  force 
in  a  certain  locality,90  yet  in  others  the  rule  prevails  that  courts 
will  not  take  judicial  notice  of  the  happening  of  the  conditions 

85.  Woodward  v.  State,  103  Ga.  See  State  v.  O'Brien,  35  Mont.  482, 
496,  30   S.  E.   522;    State  v.  Emery,      90  Pae.  514. 

98   N.  E.   768,   3   S.   E.   810.  !M»-  Courts   take   judicial   notice   of 

86.  State  v.  Cooper,  101  N.  C.  684,  a  local  law  applicable  to  a  particu- 
8  S.  E.  134.  1'ir   county.      Badgett  v.   State,    157 

87.  Drechsel   v.   State,   35  Tex.  Cr.  Ala.    20,    48  So.  54. 

577,   34   S.  W.   932.  Courts  take    judicial  cognizance  of 

88.  State  <:r  rel.  Welsh  v.  State  a  vote  against  license.  Thomas  V. 
Hoard  of  Canvassers,  79  S.  C.  246,  60  Commonwealth,  90  Va.  92,  17  S.  E. 
S.   E.   (i'.iit.  ~sS- 

89.  Thomas  v.  Abbott,  105  Mich.  In  Mississippi  it  was  provided 
687,  63  N.  W.  984,  citing  Friesner  by  the  code  of  \*'M  t hut  the  courts 
v.  Common  Council  of  City  of  Char-  should  take  judicial  notice  of  the  re- 
lotto,    91    Mich.    504,    52    X.    W.    IS.  suit  of  local  option  elections.    Puckett 

v.   State,  71    Mi-.    192,   14  So.  452. 


±72 


LOCAL    OPTION    ELECTIONS. 


[§   418 


which  bring  into  operation  the  local  option  law  but  that  their  hap- 
pening must  be  both  pleaded  and  proved  by  one  who  wishes  to 
take  the  benefit  of  them.91  So  it  has  been  held  that  an  allegation 
in  an  indictment  that  a  local  option  law  is  in  force  in  a  certain 
district  must  be  proved.02  But  it  is  decided  that  it  is  not  for  the 
jury  to  determine  whether  or  not  local  option  has  been  adopted 
but  that  it  is  for  the  court.93  And  the  evidence  to  show  that  an 
election  has  been  held  is  properly  addressed  to  the  court  and  not 
to  the  jury  and  the  court  having  found  that  an  election  had  been 
held  and  resulted  in  the  adoption  of  the  law  it  is  proper  to  in- 
struct the  jury  that  the  law  is  operative  in  the  territory  for  which 
the  election  was  held.94  And  the  court  may  instruct  the  jury  as  to 
when  the  law  went  into  effect.05    But  where  the  orders  exhibited  in 


And  in  a  later  ease  in  this  state 
it  has  also  been  decided  that  the 
court  will  take  judicial  notice  that 
prohibition  is  in  force  in  a  certain 
county  and  that  there  could  not  be  a 
lawful  sale  of  intoxicants  therein. 
Irby  v.  State,  91  Miss.  542,  44  So. 
801. 

91.  State  v.  Van  Vliet,  92  Iowa 
476,  61  N.  W.  241. 

Must  prove  adoption  of  local 
option  except  possibly  where  the 
proceedings  are  in  the  court  issuing 
the  order  announcing  its  adoption. 
Gay  v.  Eugene  (Oreg.  1909),  100  Pac. 
306. 

In  Texas  it  has  been  declared  that 
the  court  should  in  every  case  of  a 
prosecution  require  the  introduction 
of  the  formal  orders  of  the  commis- 
sioner's court  of  their  several  coun- 
ties putting  local  option  into  effect, 
Bills  v.  State  (Tex.  Cr.  1909),  117 
S.  W. 

In  Alabama  it  is  decided  that  in  a 
prosecution  for  a  violation  of  the  lo- 
cal  option  law  the  burden  is  upon 
the  state  to  show  that  an  election 
has  been  held  and  that  the  result  was 


against  the  sale  of  liquor.     Long  v. 
State   (Ala.  1910),  51  So.  636. 

The  judge  making  the  order  may 
properly  be  asked  whether  in  obedi- 
ence to  such  order,  which  has  been 
identified  by  him,  an  election  was 
held  in  territory  referred  to  therein. 
Long  v.  State  (Ala.  1910),  51  So.  636. 

92.  Butler  v.  State,  25  Fla.  347,  6 
So.  67. 

The  state  where  it  alleges  the  pas- 
sage and  adoption  of  a  local  option 
law  must  prove  the  same.  Byrd  v. 
State,  51  Tex.  Cr.  539,  103  S.  W. 
863. 

93.  State  v.  Brown,  130  Mo.  App. 
214,   109   S.   W.  99. 

94.  State  v.  O'Brien,  35  Mont.  482, 
90  Pac.  514. 

The  court  may  properly  charge 
the  jury  that  a  law  has  been  put 
into  force  in  a  certain  territory  where 
there  has  been  a  compliance  with  the 
provisions  of  the  statute  necessary 
to  put  it  in  force.  Sebastian  v.  State, 
44  Tex.  Cr.  508,  72  S.  W.  849. 

95.  Combs  v.  State,  81  Ga.  780,  8 
S.  E.  318. 


§   419]  LOCAL   OPTION    ELECTIONS.  473 

evidence  are  sufficient  to  pu1  the  local  option  in  force  in  a  certain 
county  it  is  immaterial  whether  the  court  instructed  the  jury 
local  option  was  in  force  in  such  county  or  assumed  in  the  charge 

that  it  was  in  effect. ;": 

§  419.  Proof  of  adoption  of  local  option;  sufficiency  of. 

Except  in  those  states  in  which  it  is  decided  thai  the  courts 
will  take  judicial  notice  of  the  adoption  of  local  option  proof  of 
its  adoption  is  generally  provided  for  by  statute  and  in  each  state 
what  is  sufficient  proof  will  depend  either  upon  the  terms  of  the 
local  option  statute  or  of  the  election  law  where  the  former  con- 
tains no  such  provision.  Thus  in  Florida  a  copy  of  the  record  of 
the  result  of  the  canvass  of  the  returns  of  the  election  as  made  by 
the  county  canvassing  board  and  recorded  in  the  minutes  of  the 
proceedings  of  the  board  of  county  commissioners  duly  certified 
to  by  the  clerk  of  the  circuit  court  for  such  county  in  which  an 
election  shall  have  been  held  is  to  be  taken  under  the  Florida 
statute  as  prima  facie  evidence  that  such  elect  ion  was  legally  called, 
conducted  and  holden.97  In  Kentucky  the  entry  of  certificate  of 
the  canvassing  board  is  under  the  Kentucky  statute  prima  facie 
evidence  of  regularity  of  the  procedure  theretofore  held  and  if 
there  is  nothing  to  rebut  this  an  averment  of  regularity  is  sus- 
tained.98 In  an  earlier  case  in  this  state  the  certificate  of  the 
election  was  held  to  be  the  best  evidence  there  being  nothing  in  the 
local  statute  as  in  the  general  local  option  law  making  the  certifi- 
cate of  election  prima  facie  evidence  of  the  result.'11'  In  Michigan 
it  has  been  decided  thai  the  existence  of  a  local  option  law  within 
a  county  is  sufficiently  proved  by  the  introduction  in  evidence  of 


86«  Cantwell  v.  State,  47  Tex.  Cr.  regularities  in  its  conduct. 

511,  85  s.  W.  it).  J»s.  Blackwell  v.  Commonwealth,  21 

5>t.  Barton  v.  State,  13  Pla.  177.  31  Ky.   Law   Rep.   1240,  54  S.  W.  843. 

So.    361,    holding    that    where    such  '.*'■*■  Neighbors     v.     Commonwealth, 

copy    is    introduced    an    accused    ••an-  10  Ky.   Law  Lop.  594,  0  S.  YV.   7  is. 
not  contest  the  elect  inn    for   mere   ir- 


474  LOCAL    OPTION    ELECTIONS.  [§   419 

a  certified  copy  of  the  preamble  and  resolution  of  the  board  of 
supervisors  ordering  prohibition  in  the  county.1  In  Mississippi 
it  has  been  determined  that  the  report  of  the  commissioners  whose 
duty  it  is  to  canvass  the  returns  is  the  sole  evidence  of  the  result 
under  the  statute  and  cannot  be  attacked  collaterally.2  In  Mis- 
souri evidence  of  the  records  of  the  county  court  showing  the  re- 
sult of  the  election  together  with  evidence  of  the  required  publi- 
cation has  been  held  sufficient.3 

1.  People    v.    Whitney.    105    Mich.  »•  State    v.    Searcy,    39    Mo.    App. 
622,    63   N.   W.    765,   citing   Friesner       394. 

v.  Common  Council,  91  Mich.  504,  52  In  an  earlier  case  in  this  state  it 

N.  W.  18;  People  v.  Adams,  95  Mich.  was  held  that  it  might  be  proved  by 

541,  55  N.  W.  461.  the   certificate   of   the   deputy   county 

2.  Conrad  v.  State,  70  Miss.  733,  12  clerk   instead   of   that   of   the   county 
So.  851.  clerk.     In  re  Rothwell,  44  Mo.  App. 

215. 


CIVIL    DAMAGE    ACTS.  47- 


CHAPTER  XVIII. 

CIVIL  DAMAGE  ACTS. 

Section  420.  Civil  damage  acts — constitutionality  of. 

421.  Construction  of  acts  generally. 

422.  Same  subject — application  of  rules. 

423.  "  Person  aggrieved  " — "  or  other  persons  ". 

424.  Statute  no  extra-territorial  effect. 

425.  License  no  protection  against  operation  of  statute. 

420.  Effect  of  repeal  of  statute — subsequent  act  as  to  notice. 

427.  Sale  must  be  unlawful. 

428.  Negligence  and  contributory  negligence. 
42!).  Intoxication  must  be  proximate  cause. 

430.  Proximate  cause — application  of  rule. 

431.  Proximate  cause — where  intoxicated  person  commits  a  crime  and 

is  imprisoned. 

432.  Proximate    cause — intoxicated    person    injured   or    killed   as    re- 

sult of  altercation. 

433.  Proximate  cause — question  for  jury. 

434.  Sale    must    have    contributed    to    or    caused    intoxication — prox- 

imate cause — must  be  sale  to  individual  causing  injury. 

435.  Sale  by  defendant  need  not  be  sole  cause. 
430.  Sales  by  agent  of  defendant. 

437.  Sales  by  agent  of  defendant — exemplary  damages. 

438.  Sales  l>\  agent    -sale  of  business  to  him  not  bona  fide. 
43!).  Joint  liability  of  defendant. 

440.  Joint  liability  of  defendant  but  one  satisfaction. 

ill.  Owner  or  lessor — statute  making  him  liable — construction  of. 

442.  Owner  bound  by  knowledge  of  agent. 

443.  Owner  or  lessor-  exemplary  damages. 

444.  Owner — extent  of  lien   against. 

445.  Notice  not  to  sell. 

440.  Notice  not  to  sell — effect  of — damages. 

447.  Sale   to    prohibited    classed    generally — minors — intoxicated    per- 

sons. 

448.  Sales  to  minor — action  by  parents  generally. 


476  CIVIL    DAMAGE    ACTS.  [§   420 

Section  449.  Sales  to  minor — action  by  father. 

450.  Sales  to  minor — action  by  mother. 

451.  Sales  to  minor — consent  of  parents  as  bar. 

452.  Sales  to  minor — exemplary  damages. 

453.  Sales  to  habitual  drunkards. 

454.  Sales  to  intoxicated  persons. 

Sec.  420.  Civil  damage  acts — constitutionality  of. 

In  view  of  the  evils  resulting  from  excessive  indulgence  in 
intoxicating  liquors,  such  as  impoverishment  of  families,  in- 
juries to  others,  and  the  creation  of  public  burdens,  the  legis- 
lature in  many  states  have  sought  to  better  control  the  traffic  by 
enacting  statutes  giving  a  right  of  action  in  favor  of  persons 
injured  by  the  intoxication  of  another  against  the  one  selling 
or  furnishing  the  liquors  causing  or  contributing  to  such  in- 
toxication. These  statutes  in  most  cases  having  in  view  the  pro- 
tection of  the  wife  and  children  of  the  person  intoxicated,  and 
the  fact  that  they  are  more  or  less  deprived  of  their  means  of 
support  by  the  condition  of  that  person  are  wider  in  their  scope 
in  some  states  than  they  are  in  others.  Some  statutes  are  mainly 
confined  to  the  giving  of  a  remedy  to  the  family  of  such  person, 
while  in  others  a  right  of  action  is  given  to  any  person  who  is 
injured  in  his  person  or  property  by  the  fact  of  the  intoxication 
of  another  or  by  some  act  of  his  while  in  that  condition.  Acts 
of  this  character  tend  to  a  better  control  of  the  traffic,  and  to  re- 
duce intemperance  and  the  formation  of  intemperate  habits. 
By  imposing  a  civil  liability  upon  the  seller  he  is  apt  to  be  more 
careful  in  his  sales,  and  to  have  more  regard  for  the  home  of  the 
buyer  and  those  who  are  dependent  upon  him.  Statutes  of  this 
character  tend  to  place  the  traffic  upon  a  higher  plane,  to  elevate 
the  tone  of  the  community,  are  a  wise  exercise  of  the  legislative 
power    and    have    generally    been    sustained    as    constitutional.1 

!•  Indiana. — Horning  v.  Wendell,  480:  Kraeh  v.  Heilman,  53  Ind.  517; 
57  Tnd.  171,  citing  Barnaby  v.  Wood,  Collier  v.  Early,  54  Ind.  559;  Koerner 
50  Ind.  405;  English  v.  Beard,  51  Ind.      v.  Oberly,  56  Ind.  284. 


§   421]  CIVIL    DAMAGE    ACTS.  477 

"The  right  of  the  legislature  to  control  the  use  of  a  traffic  in 
intoxicating  liquors  bring  established,  its  authority  to  impose 
liability  upon  those  who  exercise  the  traffic,  or  who  sell  or  give 
away  intoxicating  drinks,  for  consequential  injuries  to  third 
persons,  follows  as  a  necessary  incident."2  The  question  whether  a 
sale  is  lawful  or  unlawful  under  the  laws  of  the  state  does  not 
affect  the  validity  of  such  an  act.3  So  a  statute  providing  in 
case  of  a  sale  to  a  minor  for  a  liability  for  not  less  than  a  certain 
Bum,  is  not  open  to  the  objection  that  in  providing  for  a  fixed 
sum,  without  proof  of  actual  damages,  it  amounts  to  a  taking  of 
property  without  due  process  of  law.4  And  a  statute  under 
which  a  licensed  seller  is  made  responsible  for  an  assault  made 
by  a  buyer  of  such  liquors  from  him  where  the  intoxication  of 
the  buyer  was  caused  by  is  constitutional.5 

§  421.  Construction  of  acts  generally. 

At  common  law  there  was  no  right  of  action  against  the  seller 
of  liquor  for  an  injury  arising  from  the  intoxication  of  the  pur- 
chaser.6    The  right  is  a  statutory  one  and  statutes  of  this  char- 

Kansas. — Werner   v.    Edmiston,    24  "That  the   creation   of   rights    and 

Kan.  147.  remedies  in  these  civil  damages  acts 

Massachusetts. — Moran  v.  Goodwin,  is    a    proper    exercise    of    legislative 

130  Mass.  158,  39  Am.  Rep.  443.  power  has  been  so  long  settled  that 

Michigan. — Sisson       v.       Lampert  no    citation    of   authorities    is    neces- 

(1910).    124    \\   W.    512.      Kreiter   v.  sary."     Kennedy   v.   Garrigan    (S.    ]). 

Nichols,  28  Mich.  496.  1909),  121  X.  W.  7s::.  per  Smith.  J. 

New   Hampshire.— Bedore   v.   Xew-  -•  Bertholf   v.   O'Reilly,   74   X.   Y. 

ton,  54  N.  H.  117.  509,  524,  per  Andrews,  J. 

Neio    York.— Bertholf    v.    O'Reilly,  :*•  Bertholf   v.    O'Reilly,    74    X.   Y. 

74    N.    Y.    509,    30    Am.    Rep.    323;  509,    30    Am.     Rep.    323.      See    also 

Franklin     v.     Scliermerliorn.     S     llun  Moran  v.  Goodwin,  130  Mass.  158,  39 

112;  Raker  v.  Pope,  2  Hun  556.  Am.    Rep.   443. 

Ohio. — Sibila    v.    Bahney,    34    Ohio  4.  Cramer  v.   Danielson,   99  Mich. 

St.  399.  531.   58   X.   \Y.   476. 

Routh    Dakota. — Garrigan    v.    Ken-  6.  Howes    v.     Maxwell,    153    Mass. 

nedy,  19  S.  D.  11,  101  X.  W.  1081.  333.  32  X.  E.  152. 

Vermont.— Stanton  v.  Simpson,  48  ,:-  Cruse  v.   Aden,   127   111.  231,  20 

Vt.  628.  N.  E.  73,  3  L.  R.  A.  327;  Quinlan  v. 

Wisconsin. — State  v.  Ludington,  33  Welch,   141   X.  Y.   158,   36  X    E.   12, 

Wi8<  107.  aff'g   69   Hun    584,   23    X.    Y.    Supp. 


47S  CIVIL    DAMAGE    ACTS.  [§    421 

acter  are  to  be  strictly  construed  and  not  to  be  extended  beyond 
the  clear  import  of  their  terms,  and  a  plaintiff  seeking  a  remedy 
thereunder  must  bring  himself  clearly  within  the  terms  of  the 
statute.7  So  in  Texas  it  is  held  that  suits  to  recover  under  civil 
damage  acts  are  in  the  nature  of  a  recovery  of  statutory  penalties.8 
So  it  is  declared  in  a  recent  case:  "  One  thing  must  be  constantly 
borne  in  mind  when  considering  these  civil  damage  acts — the 
right  and  the  remedy  created  by  these  statutes  are  exclusive.  No 
right  of  action  exists  save  that  expressly  given  by  the  statute  and 
and  the  remedy  prescribed  cannot  be  enlarged  except  by  further 
slative  enactment.9  But  while  such  a  statute  should  in  its 
construction  not  be  enlarged,  yet  it  should  be  so  construed  where 
the  language  is  clear  and  explicit  as  to  give  it  its  true  meaning 
having  in  view  the  purpose  of  the  statute.10     In  the  construction 


963;    Paulson  v.   Langness,   1G   S.   D. 
471,  93  N.  W.  055. 

Such  a  statute  gives  a  cause  of  ac- 
tion where  none  existed  at  common 
law  and  renders  a  person  liable  to 
suit  in  damages  where  the  principles 
of  the  common  law  do  not.  Bacon 
v.  Jacob,  63  Hun  (X.  Y.)  51,  17  N.  Y. 
Supp.   323. 

7.  Schulte  v.  Sehleeper,  210  111. 
357,  71  N.  E.  325,  aff'y  Schulte  v. 
Menke,  111  111.  App.  212;  Nagle  v. 
Keller,  141  111.  App.  444;  Cruse  v. 
Aden,  127  111.  231,  20  N.  E.  73,  3 
L.  R.  A.  327  :  Fentz  v.  Meadows,  72 
111.  540:  Meidel  v.  Anthis,  71  111. 
241 ;  Hayes  v.  Phelan,  4  Hun  (N.  Y.) 
733. 

Not  a  penal  statute.— In  New 
York  the  Civil  Damage  Act  of  1873 
was  held  not  to  be  a  penal  statute 
but  one  creating  a  right  of  action  for 
damages  which  was  unknown  at  the 
common  law.  Quinlan  v.  Welch,  141 
X.  Y.  158,  36  N.  E.  12,  aff'g  69  Hun 
584,  23  X.  Y.  Supp.  963;  Reinhardt 
v.  Fritzsche,  69  Hun  (X.  Y.)  565, 
23  X.  Y.  Supp.  958. 


Such  an  act  is  said  however  to  be 
of  a  highly  penal  character  and  one 
which  should  receive  a  strict  construc- 
tion. Cruse  v.  Aden,  127  111.  231,  20 
X.  E.  73,  3  L.  R.  A.  327;  Schulte  v. 
Menke,  111  111.  App.  212. 

And  in  Massachusetts  it  has  been 
decided  that  the  action  under  the 
statute  of  that  state  is  in  the  nature 
of  a  penal  acion.  Sackett  v.  Ruder, 
152  Mass.  397,  25  X.  E.  736,  9  L.  R. 
A.  391.  See  O'Connel  v.  O'Leary,  145 
Mass.   311,   14  X.   E.   143. 

8.  Jessee  v.  De  Shoug  (Tex.  Civ. 
App.  1907),  105  S.  W.  1011,  citing 
Johnson  v.  Rolls,  97  Tex.  453,  79 
S.  W.  513. 

Meaning  of  "  intoxication  ". — 
In  Illinois  it  has  been  held  not  error 
to  instruct  the  jury  that  as  a  matter 
of  law,  the  word  "  intoxication  used 
in  the  Dramshop  act,  means  "  excited 
to  frenzy."  Smith  v.  People,  141  111. 
447,  31  X.  E.  425. 


»•  Kennedy  v. 
1909),  121   X.  W. 

10.  Gardner  v. 
50  Atl.  892. 


Garrigan,  (S.  D. 
783,  per  Smith,  J. 
Dav,    95    Me.    558, 


§   422]  CIVIL    DAMAGE    A<  I  47!i 

of  a  statute  of  this  character  as  in  the  case  of  others,  the  rule 
pervails  thai  the  courts  are  not  confined  to  the  Literal  meaning 
the  words  of  the  statute,  but  the  intention  may  be  collected  from 

the  necessity  or  objects  of  the  act,  and  its  words  may  lie  enlarged 
or  restricted  according  to  its  true  intent.  The  court  should  not 
only  consider  the  title  of  the  act  but  also  every  other  part  of  the 
statute.11  And  where  the  statute  creates  a  liability  for  an  injury 
inflicted  by  "any  intoxicated  person,"  the  liability  for  a  wrong 
inflicted  by  such  a  person  is  an  absolute  one  and  an  inquiry  whether 
such  injury  would  have  been  inflicted  but  for  the  intoxication  is 
by  the  statute  precluded.12 

§  422.  Same  subject — application  of  rules. 

A  statute  creating  a  liability  on  the  part  of  one  who  shall  sell 
or  give  liquor  is  not  construed  as  including  the  case  of  a  person 
who,  as  an  act  of  hospitality,  at  his  own  home  or  elsewhere, 
merely  gives  a  drink  to  another  without  any  consideration  what- 
ever pecuniary  or  otherwise.13  AVhere  such  a  statute  only  pro- 
vides for  an  action  against  the  seller  of  liquor,  or  against  the 
owner  of  the  place  where  it  is  sold,  to  recover  damages  by  reason 
of  sales  to  particular  persons,  it  will  not  be  construed  as  author- 
izing an  injunction  to  prevent  the  use  of  the  building  for  future 
sales.14  And  where  the  statute  only  authorizes  a  recovery  where 
liquor  is  sold  to  a  person  there  can  be  no  recovery  where  the 
liquor  was  given  to  him.15  And  where  ;i  statute  gives  a  right  of 
action  to  a  wife  on  the  bond  of  a  licensed  dealer  for  injury  to 
her  means  of  support,  it  is  held  essential  to  entitle  her  to  recover 


11.  (ins,,  v.  Aden,  127  111.  231.  20  Whalen,   149  I*.   S.   157,   13  Sup.  Ct. 
\.   E.  7.:.  3   L.  R.  A.  327.  S22.  37  L.  Ed.  686. 

12.  Bacon    v.    Jacob,    63    Hun    (X.  15.   Brannan  v.  Adams,  76  111.  331. 
V.)   51,  17  X.  Y.  Supp.  323.  One    may   be   liable    for   tbo   pivinp 

13-  Cruse  v.  Aden.  127  111.  231.  20  of  liquors   the   same  as  though   sold, 

N.   E.   73,   3  L.   R.   A.    327.  where  statute  so  provides.     Webb   v. 

14.  Northern    Pac.    R.    R.    Co.    v.  Jugenheimer,   56   Iowa    11,    6   X.    YV. 

673.  41   Am.  Rep.  77. 


4S0  CIVIL    DAMAGE    ACTS.  [§   422 

that  the  sale  causing  the  injury  complained  of  must  have  been 
by  a  licensed  dealer  and  that  if  made  by  an  unlicensed  dealer 
there  can  be  no  recovery.  To  authorize  a  recovery  the  case  must 
be  brought  within  the  terms  of  the  statute.16  Again  a  statute 
giving  a  right  of  action  to  a  person  upon  whom  the  injured  one 
may  be  dependant  confers  no  right  upon  one  upon  whom  the  in- 
jured person  was  not  dependant  previous  to  such  intoxication.17 
In  Massachusetts  it  has  been  decided  that  the  action  under  the 
statute  is  one  for  a  penalty  or  forfeiture  and  must  be  brought 
within  the  time  prescribed  by  a  statute  in  reference  thereto.18 

§  423.  "  Person  aggrieved  " — "  or  other  persons  ". 

In  a  legal  sense  a  person  is  aggrieved  by  an  act  when  a  legal 
right  is  invaded  by  the  act  complained  of.19  The  phrase  "  person 
aggrieved  "  as  used  in  such  a  statute  has  been  held  to  simply 
relate  to  the  classes  of  persons  that  are  entitled  to  sue  and  not  to 
require  a  person  to  prove  that  he  or  she  was  actually  aggrieved  by 
the  sales  complained  of.20  Under  a  statute  giving  a  right  of 
action  to  "  any  person  aggrieved  "  a  widow  is  a  person  aggrieved 
by  the  death  of  her  husband.21  And  a  wife  is  a  "  person  ag- 
grieved.22 A  parent  is  also  an  "  aggrieved "  person  where  in- 
toxicating liquor  is  sold  to  a  minor  child  or  where  in  a  violation 
of  the  statute  a  liquor  seller  permits  such  a  child  to  enter  or 
remain  upon  the  premises  where  such  liquor  is  sold.23  But  a 
father  with  whom  an  adult  unmarried  son  lives  is  not  a  person 
"  aggrieved  "   so  as  to  have   a  right  of  action  for  expenditures 

16.  Paulson  v.  Langness,  16  S.  D.  l»-  Peary  v.  Goss,  90  Tex.  89,  37 
471.  03  X.  W.   055.  S.  W.  317. 

17.  Hollis  v.  Davis..  50  N.  H.  127,  2<>.  Tipton  v.  Thompson,  21  Tex. 
wherein  it  is  said  that  to  create  such  Civ.  App.  143,  50  S.  W.  641. 

a    right   there    should    be   some    such  21.  Fink  v.  Garman,  40  Pa.  St.  95. 

words  as  "may  become  dependent  by  23-  Wright  v.  Tipton,  92  Tex.  168, 

reason    of    such    injury "    or    "  may  46  S.  W.  029. 

afterwards  become  dependent."  23«  Peary  v.  Goss,  90  Tex.  89,  37 

is.  O'Connell  v.  O'Leary,  145  Mass.  S.  W.  317. 
311.  14  N.  E.  143. 


§§424,425]  CIVIL    DAMAGE    ACTS.  jv- 

and  loss  of  time  in  taking  care  of  such  son  while  recov<  ring  from 
injuries  sustained  by  him  as  the  resull  of  the  sale  to  him  of  in- 
toxicating liquors.24  And  one  who  while  lying  drunk  in  a  saloon 
is  assaulted  by  a  stranger  is  uol  entitled  to  recover  then  for  from 
the  saloon-keeper,  he  not  being  a  person  "aggrieved"  within  the 
meaning  of  the  statute.26  The  words  "or  other  persons"  cover 
all  persons  as  used  in  a  civil  damage  act,26  and  includes  a  hus- 
band injured  by  the  intoxication  of  his  wife.27 

§  424.  Statute  no  extra — territorial  effect. 

Such  a  statute  does  not  have  an  extra-territorial  effect  and 
where  the  sale  causing  the  intoxication  is  made  in  one  state  but 
the  injurious  act  causing  an  injury  to  a  person  or  property  is 
done  in  another  state  the  person  sustaining  such  injury  cannot 
recover  in  the  state  where  the  sale  was  made.28 

§  425.  License  no  protection  against  operation  of  statute. 

As  we  have  stated  in  a  preceding  part  of  this  work,  a  license 
is  a  mere  permit  to  conduct  the  traffic  subject  to  such  laws  as  are 
in  force  or  such  future  valid  enactments  as  the  legislature  in  the 
legitimate  exercise  of  its  power  may  see  fit  to  make.29  It  there- 
fore follows  that  a  license  is  no  protection  against  the  operation 
of  the  statute  and  no  defense  to  an  action  by  one  who  has  been  in- 
jured by  the  act  of  an  intoxicated  person  to  whom  liquors  pro- 
ducing such  intoxication  were  sold  by  the  defendant.30 

24.  Venn   v.   Creaton,    138   Pa.   St.  27.  Landrum     v.     Flannigan,     60 

48,  20  Atl.  865,  9  L.  R.  A.  814.  Kan<    ,;;,■    -,;  ,,:l(,  7-.._ 


28.  Goodwin    v.     Young,    34    Hun 


2-".  Anderson    &    Co.    v.    Diaz, 
Ark.  606,  92  s.  \v.  861,  citing  Gage 

v.  Earvey,  66  Ark.  68,  4S  S.  \Y.  898,  (N'  Vl   253, 

43,  I..  R.  A.  (N.  S.)   143,  and  holding  29'  s"''  §   192  herein, 

also  thai  the  keeper  of  a  saloon  is  not  30.  Roth    v.    Eppy,    so    111.    283; 

liable  for  an  assault   upon  one  of  his  Jones  v.  Bates,  26  Neb.  693,  \2  X.  W. 

patrons  committed  by  his  bar-tender  751,  1  !..  R.  A.  195;  Roose  v.  Perkins, 

not  in  the  scope  of  his  employment.  !>  Neb.  304,  2  N.  W.  71">.  :!1  Am.  Rep. 

2e.  Flower  v.  Witkovsky.  69  Mich.  409. 
371,  37  N.  W.  364. 


482 


CIVIL    DAMAGE    ACTS. 


[§§   420,427 

§  426.  Effect  of  repeal  of  statute — subsequent  act  as  to  notice. 

The  right  of  action  being  purely  statutory,  is  held  to  fall  with 
the  repeal  of  the  statute  without  a  saving  clause  or  a  general 
law  saving  pending  suits  unless  the  right  has  been  carried  into 
judgment  or  unless  the  section  in  the  old  act  is  substantially 
re-enacted  in  the  repealing  act  so  that  there  has  been  no  time 
when  the  repealed  section  was  not  the  law.31  But  where  a  right 
of  action  has  accrued  under  a  statute  it  is  not  taken  away  by  the 
passage  of  another  act  subsequent  thereto  which  recognizes  such 
a  right,  but  imposes  as  a  condition  that  notice  to  a  seller  shall  be 
given  in  order  to  render  him  liable.32 


§  427.  Sale  must  be  unlawful. 

It  may  be  stated  generally  that  the  sale  must  be  one  which  is 


31.  Curran  v.  Owens,  15  W.  Va. 
208 ;  See  also  Faired  v.  Drees,  41 
Wis.  186,  following  Dillon  v.  Linder, 
36  Wis.   344. 

See  Roth  v.  Eppy,  80  111.  283; 
Mulcahey  v.  Givens,  115  Ind.  286,  17 
N.  E.  598. 

32.  Quinlan  v.  Welch,  141  X.  Y. 
158,  36  N.  E.  12,  affg  69  Hun  584,  23 
X.  Y.  Supp.  963.  The  court  said,  per 
Bartlett,  J.:  "The  repeal  of  a  penal 
statute  discharges  offenses  committed 
before  such  repeal  and  proceedings 
based  thereon.  1  Hale's  pleas  of  the 
Crown  2!>1  ;  Hartung  v.  People,  22  N. 
Y.  99,  100;  Curtis  v.  Leavitt,  15  Id. 
229:  Butler  v.  Palmer,  1  Hill  324. 
This  statute  of  1873  being  in  no  sense 
penal  it  falls  within  the  rule  which 
has  long  existed  and  was  recognized 
by  this  eourt  in  Re  Miller,  110  N.  Y. 
216,  18  X.  E.  139.  The  question 
presented  in  that  case  was  whether  a 
beneficiary  who  had  become  liable  to 
pay  a  tax  under  the  Collaterial  In- 
heritance Act  of  1885  (ch.  483)  was 
released  from  the  payment  thereof  by 
chap.   713,  Laws  of  1887,  which  was 


enacted  before  payment  of  said  tax 
and  under  the  terms  of  which  the  tax 
was  not  imposed.  Judge  Danforth, 
at  page  223  says,  '  The  surrogate 
and  the  Supreme  Court,  however, 
thought  the  case  made  by  the  peti- 
tioner should  be  decided  as  if  the  act 
of  1887  had  not  been  passed,  and  we 
are  of  that  opinion.  The  rule  is  con- 
sidered settled  in  this  state  that 
neither  original  statutes  nor  amend- 
ments have  any  retroactive  force,  un- 
less in  exceptional  cases  the  legisla- 
ture so  declare.'  Dash  v.  Van  Kluck, 
7  Johns  4,  7,  5  Am.  Dec.  291,  San- 
ford  v.  Bennett,  24  X.  Y.  20;  People 
ex  rel.  Xewcomb  v.  McCall,  94  Ld. 
587-590.  In  the  latter  case  Judge 
Earl  says  at  page  590 :  '  It  is  a 
general  rule  often  reiterated  and  laid 
down  in  reported  decisions  that  laws 
should  be.  so  construed  as  to  be  pros- 
pective and  not  retrospective  in  their 
operations  unless  they  are  specially 
made  applicable  to  past  transactions 
and  to  such  as  are  still  pending. 
'  We,  therefore,  hold  that  plaintiff's 
cause  of  action  was  not  affected  by 


CTN  II.    DAMAGE    ACTS. 


183 


§  427] 

in  violation  of  law.88  And  whore  the  statute  provides  as  to  the 
class  of  sales  which  render  the  seller  liahle,  as  ii  generally  does, 
the  sale  musl  be  one  which  is  in  violation  of  the  Btatute  to  au- 
thorize a  recovery.84  A  statute  conferring  the  right  to  recover 
for  an  injury  resulting  from  an  unlawful  sale,  doi  -  nol  refer  to 
a  sale  which  is  unlawful  under  the  particular  act,  but  to  one 
which  is  unlawful  under  any  statute.35  So  where  a  statute 
provides  for  a  recovery  for  an  injury  resulting  from  an  unlawful 
selling  of  liquors,  it  is  decided  that  no  right  of  action  is  conferred 
to  recover  for  an  injury  resulting  from  the  giving  away  of  liquors 
except  where  by  statute  such  giving  away  is  made  unlawful 
selling.36  And  a  liquor  dealer  or  his  sureties  are  not  liable  for 
loss  of  maintenance  and  support  caused  by  a  murder  committed 
by  the  servant  of  the  seller,  the  bond  being  conditioned  for 
injury  to  means  of  support  caused  by  an  unlawful  sale  of  liquor 
or  damage  sustained  to  person,  property  or  means  of  support  on 


either  chapter  401  or  403  of  the  Laws 
of    1892." 

See  also  Reinhardt  v.  Fritzsche,  69 
Hun  (N.  Y.)  565,  23  N.  Y.  Supp. 
958. 

:?:?•  Peacock  v.  Oaks,  85  Mich.  579, 
48  N.  W.  1082;  Baker  v.  Beckwith, 
29  Ohio  St.  314:  Russell  v.  Tippin, 
12  Ohio  C.  C.   52. 

Unlawful  sale  by  druggist- 
instruction. — Where  a  defendant  is 
only  authorized  to  sell  liquor  for 
medicinal  purposes  an  instruction 
that  if  he  made  sales  of  intoxicating 
liquor  to  defendant's  husband  for  any 
other  purpose  than  those  provided  by 
the  statute  he  would  be  liable  in 
damages  is  proper.  Lockard  v.  Van 
Alstyne,  155  Mich.  507,  120  N.  W.  1. 
distinguishing  Merrinane  v.  Miller, 
148  Mich.  412.  Ill  X.  W.  1050,  and 
also  holding  thai  testimony  thai  a 
druggisl  sold  beer  to  be  drunk  upon 
the  premises  and  that   he  kepi   a   re- 


frigerator in  which  such  beer  was 
stored  is  competent  as  bearing  upon 
the  question  of  the  good  faith  of  the 
defendant  in  making  sales  and 
whether  lie  was  conducting  his  busi- 
ness lawfully.  And  it  was  also  held 
that  where  a  defendant  claims  thai 
liquor  was  only  sold  for  medicinal 
purposes  it  was  proper  to  show  by  the 
testimony  of  the  employer  of  the 
plaintiff's  husband  that  the  latter 
drew  money  from  him  nearly  every 
day  and  went  immediately  to  defend- 
ant's store  and  came  back  with 
whisky  and  drank  it  in  the  shop  and 
was    intoxicated. 

84.  Mitchell  v.  Ratts,  57  1ml.  259; 
Myers  v.  ('on  way.  ;-).";  Iowa  166; 
Rogers  v.  Hughes,  87  Ky.  185,  8  S.  W. 
hi. 

:•••-••  Sibila  v.  Bahney,  34  Ohio  St. 
399. 

:t«s.  Baker  v.  Beckwith,  29  Ohio  St. 
314. 


484  CIVIL   DAMAGE    ACTS.  [§§  428,429 

account  of  the  use  of  liquor  sold.37  As  tending  to  show  that  the 
sale  of  liquor  to  the  slaver  of  the  husband  of  the  plaintiff  was 
unlawful  evidence  is  admissible  that  such  person  was  in  the 
habit  of  becoming  intoxicated.38 

§  428.  Negligence  and  contributory  negligence. 

The  cause  of  action  is  statutory  and  not  in  any  way  based  upon 
the  negligence  of  the  injured  party.39  So  one  who  with  knowl- 
edge of  his  son's  intemperate  habits  permitted  him  to  take  a  horse 
to  drive  to  a  neighbor's,  was  held  not  to  be  guilty  of  contributory 
negligence  which  would  preclude  him  from  recovering  the  value 
of  the  horse  whose  death  was  caused  by  the  overdriving  of  him  by 
the  son  while  intoxicated.40  And  in  a  suit  by  a  wife  to  recover 
from  a  liquor  dealer  and  his  sureties,  damages  for  injuries  sus- 
tained by  her  by  being  thrown  from  a  carriage,  in  which  she  was 
riding  with  her  husband,  by  reason  of  its  being  overturned  through 
the  negligence  of  intoxicated  persons,  the  contributory  negligence 
of  the  husband,  if  any,  was  held  not  to  enter  into  the  issue.41 

§  429.  Intoxication  must  be  proximate  cause. 

It  is  a  general  rule  that  in  order  to  render  a  defendant  liable 
the  intoxication  caused  or  contributed  to  by  him  shall  have  been 
the  proximate  cause  of  the  injury  complained  of.42     Where  the 

37.     State    ex      rel.      Endricks     v.  111.    App.    212;    Schmidt   v.   Mitchell, 

Knotts,  24   Ind.   App.   477,   56   X.   E.  84   111.    195,   25   Am.   Rep.   446;   Hart 

941.  v.  Duddleson,  20  111.  App.  612;  John- 

•"•*.   Doty   v.   Postal,   87   Mich.   143,  son  v.  Drummond,  16  111.  App.  341. 

4«i  X.  \V.  534.  Indiana.— Dudley  v.  State,  40  Ind. 

:;;>•  Wright  v.  Treat,  83  Mich.  110,  A.  C.  74,  81  N.  E.  89. 

47  X.  W.  213.  Iowa. — Jarozewski     v.     Allen,     117 

See   §    428   herein   as  to   action   by  Iowa  633,  91  X.  W.  941. 

intoxicated   person.  Massachusetts. — McXary   v.    Black- 

40.  Bertholf    v.    O'Reilly,    8     Hun  burn,  180  Mass.  141,  41  N.  E.  885. 
(X.   Y.)    16,  aff'd  74  N.  Y.  509.  Pennsylvania.— Roach  v.  Kelly,  194 

41.  Wright  v.  Treat,  83  Mich.  110,  Pa.  St.  24,  44  Atl.  1090,  75  Am.  St. 
47  X.  W.  2  13.  Rep.  685;  Bradford  v.  Boley,  167  Pa. 

4ii.  Illinois.— Schulte   v.    Schleeper,       St.  506,  31  Atl.  751. 
210  111.   357,  71  X.  E.  325,  aff'g  111 


§   430]  CIVIL    DAMAGE    ACTS.  435 

injury  is  caused  by  the  dired  and  independenl  act  of  a  third 
person   and   not    from   the   intoxication    or   anything   consequent 

thereupon  there  can  be  no  recovery.  The  intoxication  must  he 
the  proximate  cause  of  the  disability.48  In  some  cases,  however, 
it  has  been  decided  that  where  the  statute  creates  a  liability  for 
any  injury  done  by  any  intoxicated  person  a  plaintiff  need  not 
show  nor  should  the  jury  speculate  upon  the  probabilities  whether 
the  intoxication  was  the  natural  cause  of  the  act.  It  is  only  neces- 
sary to  show  the  intoxication.44  And  where  a  man  committed 
suicide  while  intoxicated,  it  is  decided  in  a  recent  case  in  Iowa 
that  the  wife  need  only  show  such  facts  and  need  not  show  that 
he  would  not  have  committed  the  act  but  for  the  sale  to  him  of 
the  liquor  by  the  defendant.45  And  in  a  case  in  Illinois  it  is 
decided  that  where  a  person  is  killed  while  intoxicated  it  cannot 
be  set  up  in  defense  that  it  was  the  result  of  an  intervening  agency 
which  caused  the  death  as  a  statute  allowing  a  recovery  by  the 
widow  for  injury  to  her  means  of  support  in  such  a  case  is  not 
to  be  construed  as  meaning  that  intoxicating  liquor  alone,  ex- 
clusive of  other  agency,  shall  do  the  whole  injury,  but  the  statute 
is  to  be  construed  as  designed  for  a  practical  end  and  to  give  a 
substantial  remedy.10 

§  430.  Proximate  cause — application  of  rule. 

If  a  person  is  in  an  intoxicated  condition  and  by  reason  thereof 
is  unable  to  exercise  proper  caution  or  take  proper  care  of  himself 
in  consequence  of  which  he  is  killed,  intoxication  would  be  the 
proximate  cause.47     So  the  sale  of  liquor  to  one  while  intoxicated 

See  also  cases  cited  in  the  following  i  •  •  Brockway     v.     Patterson,     72 

sections.  Mi.1i.   122,   10  X.  \Y.   192,  1   L.  R.  A. 

That    intoxication    was    proximate  708. 

cause  of  the  death  of  a   husband  and  •«•">.  Bistline  v.  NTey  Bros.,  134  Iowa 

father  is  sufficiently  shown  by  plead-  172.   Ill   \.  \\".  422. 

ing.     See  Wall  v.  State  ex   rel.   Ken-  n;.  Schroder   v.    Crawford,    04    111. 

dall,  10  Ind.  App.  530,  38  \.   E.   190.  357,  34    Am.   Rep.  236. 

43.  Schulte    v.    Schleeper,    210    ill.  it.   Meyer  v.    Butterbrodt,   146  Til. 

357,   71    \.    E.   325,   aff'g   Schulte   v.  131,  34   X.   K.   152. 
Menke,  111  111.  App.  212. 


486  CIVIL    DAMAGE    ACTS.  [§    430 

has  been  held  to  be  the  proximate  cause  of  his  death  where  it  is 
shown  that  by  reason  of  such  intoxication,  he  lost  his  reason  and 
judgment  and  all  care  of  himself,  and,  while  drunk  and  un- 
conscious, contracted  a  severe  cold,  although  the  direct  cause  of 
his  death  was  pneumonia.48  And  where  a  person,  while  in- 
toxicated was  unable  to  manage  the  horses  he  was  driving  in  con- 
sequence of  which  the  vehicle  was  overturned  injuring  him  and 
his  wife,  the  sale  to  him  of  the  liquors  producing  the  intoxica- 
tion was  held  to  be  the  proximate  cause  of  the  injury.49  Again, 
the  sale  of  intoxicants  to  a  son  may  in  an  action  by  his  father  for 
injury  to  his  means  of  support  be  found  as  the  proximate  cause 
of  the  son's  death  by  being  struck  by  a  train  while  on  the  track 
in  a  drunken  condition.50  And  in  Nebraska  it  has  been  decided 
that  licensed  sellers  are  liable  in  damages  for  all  the  proximate 
and  legitimate  consequences  of  their  traffic  and  that  if  they  have 
induced  habitual  drunkenness  in  a  previously  sober  and  indus- 
trious man  they  are  liable  for  a  consequent  thriftless  and  dis- 
sipated career  followed  by  him  after  they  have  ceased  to  furnish 
him  with  liquors.51  But  where  a  woman  followed  her  husband, 
who  was  intoxicated,  and  while  so  doing  she  fell  and  was  injured, 
her  injury  was  held  not  to  be  the  natural  and  proximate  result 
of  his  intoxication.52  And  where  while  a  person  was  intoxicated 
an  altercation  arose  between  him  and  the  bartender  who  threw 
a  glass  at  him  which  missed  him  and  struck  a  third  person,  it 

48.  Nelson  v.  State  ex  rel.  Hunter,  he  would  not  have  received  such   in- 

32  Ind.  App.  88,  69  N.  E.  298.  jury    had    he    not    been    intoxicated 

40.  Mulcahey   v.    Givens,    115    Ind.  that   in     an     action     by     the    widow 

286,   17  N.  E.  598.  for   injury  to   her   means   of   support 

Compare  Krach  v.  Heilman,  53  Ind.  she  was  not  injured  "  in  consequence 

517,    holding    where    a    person    was  of  the  intoxication." 

so  intoxicated  that  he  was  unable  to  50.     McNary     v.     Blackburn,     180 

take    care    of   himself   and    in    conse-  Mass.  141,  61  N.  E.  885. 

quence  thereof  was  lying  in  his  wagon  51.  Stahnka    v.    Kreitle,    66    Neb. 

on  the  way  home  and  while  so  doing  829,  92  N.  W.  1042. 

received  an   injury  from  a   barrel   in  52.  Johnson  v.   Drummond,   16  111. 

the  wagon   from  which  he  died  and  App.  641. 


§  431]  CIVIL    DAMAGE    ACTS.  487 

was  held  that  the  injury  to  the  latter  was  not  the  natural  and 
proximate  cause  of  the  sale  of  liquor.53 

§  431.  Proximate  cause — where  intoxicated  person  commits  a 
crime  and  is  imprisoned. 
Similar  to  the  question  considered  in  the  last  section  is  that 
where  an  intoxicated  person  commits  a  crime  and  is  imprisoned 
therefor  whereby  his  wife  or  children  or  both  are  deprived  of 
their  means  of  support.  In  this  connection  it  has  been  decided 
that  where  one  is  sent  to  the  penitentiary  for  the  commission  of  a 
crime  committed  in  consequence  of  his  being  intoxicated  the  wife 
of  such  person  may  maintain  an  action  against  the  saloon  keeper 
for  loss  of  means  of  support.54  And  in  a  case  in  Illinois  it  is 
held  that  where  a  father  commits  a  crime  as  a  result  of  the  sale 
of  intoxicating  liquors  to  him,  the  seller  is  responsible  to  a  child 
for  loss  of  support  whether  such  loss  resulted  from  the  convic- 
tion of  the  father  and  his  incarceration  in  the  penitentiary  or 
by  his  flight  from  the  country  to  avoid  that  punishment.55  But 
in  Michigan  it  has  been  declared  that  where  a  person  commit-  a 
crime  while  intoxicated  and  is  imprisoned  therefor,  it  is  his  ar- 
rest, conviction  and  imprisonment  which  deprives  a  wife  of  her 
means  of  support.56  And  in  Pennsylvania  it  is  declared  that  the 
imprisonment  of  the  husband  is  not  the  proximate  consequence  of 
the  act  of  the  seller  but  is  the  act  of  the  law,  the  direct  result  of 
the  intervention  of  an  independent  agency.57 


•"•'5.  Lucken   v.   People,    3   111.   App.  v.  Walhizer,  43  Hun  (X.  V.)  254.    The 

375.  Pennsylvania     Btatute    provided    that 

•"■«•  Homire   v.    Ealfman,    156    Ind.  "any   person    furnishing  intoxicating 

470,  60  N.  E.  154;  Beers  v.  Walhizer,  liquors  to  any  other  person   in  viola- 

43  Bun   (X.  Y.)   254.  tion  of  existing  laws,  or  of  the  pro- 

55.  Loftus    v.    Hamilton,    105    111.  visions  of  this  act  shall  be  held  civilly 

App.  72.  responsible  for  any  injury  to  person 

5G.  Dennison  v.  Van   Wormer,  107  <>r   property    in   consequence   of   such 

Mich.  461,  65  X.  W.  274.  furnishing."      It    contained    no    pro- 

•">7.  Bradford  v.  Boley,  L67  Pa.  St.  vision  as  to  loss  of  means  of  support. 
506,  31  Atl.  751,  distinguishing  Beers 


4SS  CIVIL    DAMAGE    ACTS.  [§   432 

§  432.  Proximate  cause — intoxicated  person  injured  or  killed 
as  result  of  altercation. 
In  a  few  cases  the  question  has  arisen  whether  there  can  be 
a  recovery  by  the'  wife  or  children  of  one  who  while  intoxicated 
became  engaged  in  an  altercation  and  was  injured  or  killed. 
The  decisions  upon  this  point  are  not  in  harmony.  In  some 
it  is  declared  that  in  such  a  case  the  intoxication  is  not  the 
proximate  cause  of  the  injury  but  that  such  injury  is  the  result 
of  the  wilful  conduct  of  such  person  which  constitutes  a  new  and 
independent  cause  and  which  relieves  a  defendant  from  liability. 
So  in  a  case  in  Illinois  it  is  decided  that  where  a  man  became 
intoxicated  and  as  a  result  thereof  used  abusive  language  to  an- 
other who  assaulted  and  killed  him,  the  seller  was  not  liable  to  the 
wife  in  damages  therefor.58  And  in  a  later  case  in  the  same  state 
where  a  person  while  intoxicated  made  a  wilful  assault  upon  an- 
other who  killed  him  it  was  held  in  an  action  by  the  widow  for 
injury  to  her  means  of  support  that  the  death  of  such  person 
was  the  result  of  his  own  wilful  and  unlawful  conduct  and  was  not 
the  natural  result  of  the  traffic  for  which  the  seller  was  respon- 
sible.59 In  another  case,  however,  in  Illinois,  it  was  declared 
that,  in  the  application  of  the  doctrine  that  the  intoxication  must 
be  the  proximate  cause  of  the  injury,  where  one  gets  into  difficulty 
and  is  shot,  such  injury  is  one  for  which  there  may  be  a  recovery 
by  a  wife  for  injury  to  her  means  of  support,  but  that  if  by  his 
carelessness  he  does  not  obey  the  instructions  given  him  by  his 
physician  as  a  result  of  which  inflammation  ensues  rendering  nec- 
essary  an  amputation  of  the  limb  injured,  which  results  in  his 
death,  the  seller  is  not  responsible  to  the  wife  therefor.60  And  in 
a  case  in  Maine  where  there  was  evidence  tending  to  show  the  sale 
of  intoxicating  liquors  to  plaintiff's  son  upon  whom  she  was  in  fact 
dependent  for  support,  that  the  liquor  caused  him  to  make  an 

58.  Shugart  v.  Egan,  83  111.  56,  25      App.  580. 

Am.  Rep.  350.  60.  Schmidt  v.  Mitchell,  84  111.  195, 

59.  Sauter    v.    Anderson,    11 2    Til.      25  Am.  Rep.  446. 


§   j;>oj  CIVIL    DAMAGE    ACT  3.  is!) 

assault  upon  a  person  who  in  self-defense  struck  him  and  broke  his 
jaw,  resulting  in  Lis  decreased  ability  to  labor  and  consequenl  in- 
jury to  plaintiff's  means  of  support,  it  was  held  thai  if  thes 
were  found  in  the  affirmative  and  the  jury  also  found  thai  the  de- 
fendant ought  to  have  apprehended  the  resulting  injury  to  the 
the  injury  to  the  plaintiff's  means  of  support  would  then  be  by 
reason  of  the  intoxication  of  the  son  and  the  defendanl  would  be 
liable  therefor.*1  And  in  a  recent  case  in  Washington  it  was 
decided  thai  where  a  person  while  intoxicated  made  a  deadly  and 
unprovoked  assault  upon  another  who  in  self-defense  killed  him,  a 
minor  child  might  recover  from  the  saloon  keeper  damages  for  the 
injury  to  her  caused  by  her  father's  death.62  In  this  connect  inn 
it  may  be  well  to  consider  the  fact  that  the  proximate  cause  is  not 
necessarily  ascertained  by  reference  to  point  of  time.  A  cause 
may  be  a  proximate  one  where  it  is  connected  with  the  result  by 
a  continuous  chain  of  events  and  is  the  efficient  and  primary 
cause.  It  is  a  matter  of  common  knowledge  that  intoxicating 
liquor  frequently  causes  people  to  become  abusive  and  quarrel- 
some and  that  words  are  used  by  them  and  acts  done  which  under 
sober  conditions  they  would  neither  use  nor  do,  and  of  which  they 
subsequently  have  no  remembrance.  If  such  a  state  of  intoxica- 
tion causes  a  man  to  lose  control  of  his  mental  faculties  why 
cannot  the  intoxication  be  considered  the  proximate  cause  as  well 
as  where  it  causes  a  loss  of  physical  powers  and  consequent  in- 
jury.    And  certainly  if  the  seller  has  knowledge  that  intoxication 

61.  Currier  v.  McKee,  99  Me.  364,  mankind.  The  defendanl  need  not 
59  Atl.  442.  The  court  said:  "The  have  intended  thai  plaintiff's  son 
question  of  proximate  cause  is  for  should  make  an  assault  upon  Boulier 
the  jury  under  appropriate  instruc-  or  even  have  expected  it  or  the  injury 
liens  of  law.  One  i  not  bound  to  which  followed.  Enough  if  accord- 
anticipate  what  is  merely  possible,  ing  to  human  experience  it  was  I 
nor  on  the  other  hand  is  he  liable  apprehended  that  such  results  were 
for  such  consequences  only  as  usually  likely  to  happen  from  the  intoxica- 
follovv.  It  is  sufficient  if  the  resuh  time"  Per  Powers,  J. 
ought  to  have  been  apprehended  ac-  82.  Woodring  v.  Jacobino,  (Wash, 
cording    to    the    usual    experience    of  1909),  103  Pac.  809. 


490  CIVIL   DAMAGE    ACTS.  [§§   433,434 

of  a  particular  person  causes  such  person  to  become  abusive  and 
quarrelsome  should  he  not  be  held  liable  for  such  consequences 
as  result  from  that  condition  and  which  are  the  direct  and,  we 
may  properly  say,  the  probable  results  thereof. 

§  433.  Proximate  cause — question  for  jury. 

The  question  whether  the  intoxication  was  the  proximate  cause 
of  the  injury  complained  of  is  one  for  the  jury  to  determine 
under  proper  instructions  by  the  court.60  So  where  a  person 
while  intoxicated  contracted  pneumonia  it  was  held  under  the 
facts  to  be  a  question  for  the  jury  whether  pneumonia  was  the 
result  of  exposure  and  the  consequence  by  continuous  causation 
of  the  furnishing  of  the  liquor.64  And  where  in  an  action  by  a 
mother  to  recover  for  loss  of  support  as  a  result  of  her  son's  death 
alleged  to  have  been  caused  by  the  unlawful  sale  of  liquor  to  him, 
the  plaintiff  alleged  that  the  death  of  her  son  was  due  to  his  being 
so  intoxicated  that  he  allowed  the  horse  he  was  driving  to  bring 
the  buggy  into  collision  with  a  telegraph  pole  near  the  road  and  the 
defendant  claimed  that  the  negligence  of  the  telephone  company 
was  the  cause  of  death,  it  was  held  that  the  question  of  proximate 
cause  was  one  for  the  jury.65 

§  434.  Sale  must  have  contributed  to  or  caused  intoxication — 
proximate  cause — must  be  sale  to  individual  causing 
injury. 

The  evidence  must  establish  a  sale  causing  or  contributing  to 
the  intoxication  causing  the  injury  complained  of.66  So  where 
liquors  were  sold  to  a  person  who  afterwards  gave  them  to  an- 

03.  Smith  v.  People,  141  111.  447,  31  633,  91  N.  W.  941. 

M.  E.  425;  Currier  v.  McKee,  99  Me.  66.  Schlosser  v.   State,  55  Ind.  82. 

364,    59   Atl.    442;    McMahon   v.    Du-  Fox  v.  Wunderlich,  64  Iowa   187,  20 

mas,  99  Mich.  467,  56  X.  W.  13.  N.   W.   7,   following  Welch   v.   Jugen- 

64.  Davies  v.  McKnight,  146  Pa.  heimer,  56  Iowa  11,  8  N.  W.  673,  41 
St.  010,  23  Atl.  320.  Am.    Rep.    77;    Johnson    v.    Johnson, 

65.  Jarozewski   v.   Allen,   117    Iowa  145  Mich.  586,  108  N.  W.  1011. 


§    434]  CIVIL    DAMACK    ACTS.  49] 

other  who  became  intoxicated  and  caused  the  injury  complained 

of  the  seller  is  not  liable,  if  it  appears  that  he  had  no  knowledge 
or  reason  to  believe  that  they  were  to  be  furnished  to  such 
person.07  So  in  New  York,  it  is  decided  thai  in  an  action  for 
personal  injuries  sustained  as  a  result  of  the  intoxication  of  an- 
other it  is  essential  in  order  to  recover  that  it  be  shown  that  the 
liquor  furnished  by  the  defendant  was  the  proximate  cause  of 
the  intoxication  and  also  that  the  liquor  was  furnished  to  or  for 
the  individual  whose  intoxication  caused  the  injury.88  So  where 
the  plaintiff  was  injured  as  the  result  of  a  collision  with  a  vehicle 
in  charge  of  an  intoxicated  person  and  it  was  shown  that  the 
liquor  causing  the  intoxication  was  not  furnished  to  him  by  the 
defendant  but  was  sold  to  another  person  by  whom  it  was  given  to 
the  one  causing  the  injury,  it  was  decided  that  the  defendant  was 
not  responsible.69 


67.  Sullivan  v.  Conrad,  79  Neb. 
303,    112   N.   W.   660. 

68.  Dudley  v.  Parker,  132  N.  Y. 
386,  30  N.  E.  737,  aff'g  55  Hun  29,  8 
N.  Y.  Supp.  600;  Examine  Carter  v. 
Bernstein  Bros.,  104  Iowa  572,  73 
N.  W.  1076. 

69.  Dudley  v.  Parker,  132  N.  Y. 
386,  30  N.  E.  737,  aff'g  55  Hun  29, 
8  N.  Y.  Supp.  600.  The  court  said. 
per  Bradley,  J.  "The  purpose  of  this 
statute  was  to  place  the  responsibility 
for  the  injurious  consequences  to 
others  than  the  intoxicated  person, 
upon  those  who  should  furnish  the 
liquor  which  produced  the  intoxica- 
tion of  the  person  by  whom,  which  in 
and  by  reason  of  that  condition  or 
in  consequence  of  it.  the  injury  lie 
caused  or  suffered.  This  obligation  is 
one  of  the  incidents  imposed  by 
statute  upon  the  liquor  traffic  The 
question  when  it  arises  is  not  one  of 
care  or  diligence  on  the  part  of  the 
seller,  bui  i-=  simply  one  of  can-,,  and 
effect.     And  as  has  been  said   by  this 


court,  while  the  statute  should  not  l>y 
judicial  construction  be  enlarged,  it 
should  be  interpreted  '  according  to 
its  true  intent  and  meaning,  having 
in  view  the  evil  to  be  remedied  and 
the  object  to  be  obtained.'  Meade  v. 
Stratton,  87  N.  Y.  493.  And  that 
'the  legislature  having  control  of 
subject  of  the  traffic  in  the  use  of  in- 
toxicating liquors,  may  make  such 
regulations  to  permit  the  public  evils 
and  private  injuries  resulting  from 
intoxication  as  in  its  judgment  are 
calculated  to  accomplish  this  end.' 
Bertholf  v.  O'Reilly.  74  X.  Y.  509, 
524,  30  Am.  Be]..  :',-2:',.  The  statute  is 
one  of  indemnity  for  consequences 
that  may  result  from  the  traffic  in 
liquors,  consequences  attributable  to 
intoxication.  Bui  to  charge  a  party, 
within  tli<>  meaning  of  the  statute,  the 
furnishing  the  liquor  by  him  must  be 
in  whole  or  in  part  the  proximate 
cause  of  the  intoxication  to  which  the 
injury  complained  of  may  he  imputa- 
ble.    And   for  that   purpose  the  liquor 


492 


CIVIL    DAMAGE    ACTS. 


[§  435 


§  435.  Sale  by  defendant  need  not  be  sole  cause. 

The  liquor  sold  by  a  defendant  need  not  be  the  sole  cause  of 
an  alleged  injury  to  permit  an  aggrieved  party  to  recover.70 
Though  a  seller  may  not  have  been  the  only  one  to  sell  liquor 
causing  the  injuries  complained  of,  he  may  be  liable  where  he  has 
partially  contributed  thereto.71  It  is  sufficient  if  it  appears  that 
the  liquor  sold  was  either  solely  or  with  liquor  sold  by  other 
parties  at  or  about  the  same  time  the  direct  cause  of  the  intoxica- 
tion.72 Therefore  it  is  no  defense  to  an  action  against  a  seller 
to  recover  for  an  injury  resulting  from  intoxication  to  show  that 
the  intoxication  was  contributed  to  by  others.73  So  a  defendant 
may  be  liable  though  he  sold  only  a  part  of  the  liquor  causing 
intoxication  and  death  of  the  husband  and  loss  of  support  of  the 
wife.74      And   the   consequence   need   not  have  been   within   the 


must  be  furnished  by  such  party  to 
or  for  the  person  whose  intoxication 
is  the  foundation  of  the  charge  of 
liability  for  the  injury." 

70.  Acken  v.  Tinglehoff  (Neb. 
1000),  110  X.  W.  456,  citing  Wiese  v. 
Gerndorf,  75  Neb.  826,  106  N.  W. 
1025;  Gorey  v.  Kelly,  64  Neb.  605, 
00  X.  W.  554;  Wardell  v.  McConnell, 
23  Xeb.  152,  36  X.  W.  278;  Chmelir 
v.  Sawyer,  42  Xeb.  362,  60  N.  W.  547. 
See  also  McClellan  v.  Hein,  56  Neb. 
600,  77  X.  W.  120;  Cornelius  v.  Hult- 
man,  44  Xeb.  441,  62  N.  W.  891; 
McClay  v.  Worrall,  18  Neb.  44,  24 
X.  W.  429. 

71.  Elsline  v.  Schuyler,  15  Neb. 
51,1.  20  X.  W.  20:  Rolling  v.  Bennett, 
18  Ohio  C.  C.  425. 

72.  Werner  v.  Edmiston,  24  Kan. 
!  17. 

?'■'-  Illinois. — Emory  v.  Addis,  71 
111.  27.",:  O'Halloran  v.  Kingston,  16 
111.  App.  659. 

Indiana. — Smiser  v.  State  ox  rel. 
Kin-.  17   Irul.  App.  510,  47  X.  E.  220. 

I  mm.— Kearney  v.  Fitzgerald,  43 
580. 


Michigan. — Steele  v.  Thompson,  42 
Mich.  594,  4  N.  W.  530. 

Nebraska. — Gorey  v.  Kelly,  64  Neb. 
605,  90  N.  W.  554. 

Where  the  statute  gives  a  cause 
of  action  where  the  injury  is  caused 
by  intoxication  produced  by  liquors 
sold  in  whole  or  in  part  by  another  it 
is  no  defense  to  an  action  against  a 
person  under  such  a  statute  to  show 
that  other  persons  sold  liquor  to  the 
same  person.  Hackett  v.  Smelsley, 
77  111.  109;  Lloyd  v.  Kelly,  48  111. 
App.  554 :  Gorey  v.  Kelly,  64  Neb. 
605,  90  N.  W.  554. 

A  seller  -who  merely  con- 
tributes to  the  husband's  habits 
of  drinking  is  not  liable  to  the  wife 
for  damages  which  may  accrue  from 
eventual  drunkenness  not  dircetly 
caused  thereby  but  is  liable  for  the 
injury  resulting  from  specific  acts  of 
intoxication  to  which  he  has  con- 
tributed. Cox  v.  Newkirk,  73  Iowa 
42,   34  N.  W.  492. 

74.  Nelson  v.  State  ex  rel.  Hunter, 
32  Ind.  App.  88,  60  X.  E.  298;  Wool- 
heather  v.   Risley,    38    Iowa  486. 


§  435]  (  IVIL    DAMAGE    A<  TS  I!,;; 

contemplation  of  the  person  who  Bold  the  liquor  to  render  him 
responsible.  Ji  is  sufficienl  if  the  liquor  Bold  produced  in  whole 
or  in  part  the   intoxication   and   thai   such   intoxication   was  the 

direct  and  proximate  cause  "i'  the  death.76  Where  the  statute 
gives  a  righl  of  action  if  the  intoxication  shall  be  caused  in  whole 
or  in  part  by  the  defendanl  and  the  complainl  alleges  it 
caused  in  whole,  evidence  is  admissible  and  sufficient  showing 
was  caused  in  part.7'1  Bui  under  a  statute  given  a  right  of  action 
against  one  who  caused  or  contributed  to  the  injury  the  plaintiff 
should  satisfy  the  jury  thai  a  defendant  contributed  to  the  injury 
in  some  appreciable  or  substantial  degree.77  And  it  has  been 
decided  that  while  a  seller  who  has  contributed  in  whole  or  in 
part  to  the  intoxication  causing  the  injury  complained  may  be 
liable  for  damages  therefor,  yet  he  must  have  contributed  to  the 
intoxication,  and  that  it  is  not  enough  to  render  him  liable  that 
he  contributed  merely  to  the  formation  of  habits  of  intoxica- 
tion.78 And  where  the  ground  for  recovery  charged  is  the  sale 
of  liquor  which  has  caused  habitual  drunkenness,  the  proof  should 
be  such  that  the  jury  can  say  that  the  person  charged  has  sold 
a  sufficient  number  of  times  to  materially  aid  in  bringing  about 

*S.  Davis     v.     Standish,     2G     Hun  intoxication    is    the    cause    and    only 

(N.  Y. )    (108.  cause    of    action     provided     f< >r    and 

70.  Rnth  v.  Eppy,  80  111.  283.  makes  the  guilty   party   liable  what- 

"  All  damages  "  as  used  in  the  ever  lie  flic  means    resorted  to  whether 

condition  of  a  bond  is  held  to  in-  they  be  on  the  pari    of  the  seller  or 

elude  lose  of  means  of  support  of  a  owner.    McGee  v.  McCann,  69  Me.  79. 

wife  and  children  of  the  husband  who  It  has  been  held  under  the  statute 

by  drinking  liquors  sold  ot  given  to  in   Michigan   making  any  one  "caus- 

him  in  whole  or  in  part  by  the  vendor,  ing  or  contributing  to  "  the  intoxica- 

principal  in  the  bond,  or  Ids  agents  or  tion  liable  thai   i-  i-  noi  accessary  to 

employees,  becomes  intoxicated  and  as  allege  in  an  action  by  a  wife  thai  the 

a   result    disabled    or   disqualified    in  sales  were  made  to  her  husband* while 

whole  <>r  in   part,  either  mentally  or  he  was  intoxicated  or  had  become  an 

physically    from     liquor.       Gran     v.  habitual   drunkard.     Wood  v.   Lentz, 

Houston,   !.->  Neb.  813,  64   X.  W.  245.  llii  Mich.  -2::,.  74  X.  \Y.  462. 

77.  Chase    v.    Kenniston,    7»;    Me.  78.  Bryant  v.  Tidgewell,  133  Mass. 

209.  86;    Examine  Steele  v.  Thompson,  42 

In  Maine  it   lias  been  derided  that  Mich.  594,  4  X.  \V.  536. 
the    causing   or    contributing    t.>    the 


494 


CIVIL    DAMAGE    ACTS. 


[§  43G 


the  state  of  habitual  drunkenness,  but  positive  proof  of  numer- 
ous sales  is  not  indispensable  to  that  conclusion.79  Whether  a 
defendant  caused  or  contributed  to  the  intoxication  causing  the 
injury  is  a  question  of  fact  for  the  jury.80  And  the  question  of 
the  extent  to  which  a  seller  contributed  to  a  person's  intoxication 
is  one  for  the  jury.81 

§  436.  Sales  by  agent  of  defendant. 

Sales  by  an  agent  of  a  defendant  are  in  effect  sales  by  him 
and  will  render  him  liable.82  And  under  allegations  that  the 
liquors  were  sold  by  the  defendant  the  plaintiff  may  show  that 
they  were  sold  by  defendant's  employees.83  And  the  fact  that 
a  saloon  keeper  prior  to  the  sales  complained  of  in  a  civil  damage 
case  had  instructed  his  servants  not  to  sell  liquor  to  the  deceased, 
is  inadmissible  in  evidence  as  tending  to  prove  that  such  sales 
were  not  in  fact  made,84  as  a  previous  direction  to  an  agent  of 
the  defendant  not  to  sell  to  the  person  in  connection  with  whom 
the  cause  of  action  arises  is  no  defense.85 


70.  Siegle  v.  Rush,  173  111.  559,  50 
N.  E.  1008. 

80.  Chase  v.  Keimiston,  76  Me. 
209. 

81.  Maloney  v.  Dailey,  67  111. 
App.   427. 

82.  Illinois. — Kennedy  Bros.  v.  Sul- 
livan, 136  111.  94,  26  N.  E.  382; 
Meyers  v.  State,  121  111.  443,  13  N.  E. 
216;  Brandt  v.  McEntee,  53  111.  App. 
457. 

Indiana. — State  ex  rel.  Brough  v. 
Terheide,  166  Ind.  689,  78  N.  E.  195; 
Barnaby  v.  Wood,  50  Ind.  405; 
Reath  v.  Slate  ex  rel.  Johnson,  16 
[nd.  App.  146,  44  N.  E.  808. 

Iowa.  Worley  v.  Spurgeon,  38 
Iowa  405. 

Massachusetts. — Genge  v.  Gobey, 
128  Mass.  289,  35  Am.  Rep.  370. 

Michigan. — Gullikson  v.  Gjorud,  82 


Mich.  503,  46  N.  W.  723,  citing  Keh- 
rig  v.  Peters,  41  Mich.  475,  2  N.  W. 
801 ;  Kreiter  v.  Nichols,  28  Mich. 
496. 

Missouri. — Skinner  v.  Hughes,  13 
Mo.  440. 

'Nebraska. — Houston  v.  Gran,  38 
Neb.  087,  57  N.  W.  403. 

New  York. — Smith  v.  Reynolds,  8 
Hun  128. 

Texas. — Manning  v.  Morris,  28  Tex. 
Civ.  App.  502,  07   S.  W.  906. 

Wisconsin. — Peterson  v.  Knoble,  35 
Wis.  81. 

83.  Carter  v.  Bernstein  Bros.,  104 
Iowa  572,  73  N.  W.  1076. 

84.  Gran  v.  Houston,  45  Neb.  813, 
04  N.  W.  245;  following  Houston  v. 
Gran,  38  Neb.   687,  57  N.  W.  403. 

85.  Young  v.  Beveridge,  81  Neb. 
180,   115  N.  W.  766. 


■    137,438,439]  CIVIL    DAMAGE    ACTS.  495 

§  437.  Sales  by  agent  of  defendant — exemplary  damages. 

Exemplary  damages  may  be  recovered  for  salee  made  by 
defendant's  employees  as  well  as  for  those  made  by  himself,  it 
being  declared  that  he  is  Liable  not  only  for  his  personal  acts  hut 
for  his  recklessness  or  wilfulness  in  neglecting  to  guard  against 
sales  that  he  knew  would  injure  those  entitled  to  In  lug  suit.86 
But  though  a  defendant  cannot  evade  his  liability  for  actual 
damages  by  showing  that  the  sale  complained  of  was  made  by  a 
servant  in  violation  of  his  order,  yet  such  fact  may  be  considered 
in  mitigation  of  exemplary  damages.87  So  where  the  defendant 
had  in  good  faith  instructed  his  employee  not  to  sell  to  a  certain 
person,  the  wife  of  such  person  should  not  in  an  action  for  loss 
of  support  be  allowed  exemplary  damages,  it  appearing  that  the 
employee  made  a  sale  in  violation  of  such  instructions.88 

§  438.  Sale  by  agent — sale  of  business  to  him  not  bona  fide. 

Where  a  person  making  the  sale  is  a  bona  fide  agent  of  the 
owner  and  a  sale  of  the  business  to  such  agent  was  a  mere 
pretense  to  relieve  the  owner's  bondmen  from  responsibility,  they 
will  nevertheless  be  held  liable.  If  on  the  other  hand  a  sale  is  a 
bona  fide  one  and  the  seller  gives  the  buyer  a  power  of  attorney 
to  act  as  his  agent,  and  such  authority  is  a  mere  pretense  to  en- 
able the  buyer  to  carry  on  the  business  unlawfully  under  the 
seller's  license,  the  latter's  bondsmen  are  not  liable  for  sales  made 
by  the  buyer.89 

§  439.  Joint  liability  of  defendants. 

All  those  who  contribute  by  making  sales  resulting  in  intoxica- 
tion causing  injury  to  another  are  liable  therefor.1'"  And  there 
may  be  a  joint  liability  for  the  damages  caused  by  a  sale  of 

86.  Kehrig  v.  Peters,  41  Mich.  47r>,  s!»-  Billiker  v.  Fair,  14!>  Mich.  444, 
2  N.  W.  801.  112  X.  W.  1116. 

87.  Fentz  v.  Meadows,  72  111.  540.  9©.   Rooae  v.   Perkins,  !'  Neb.  304. 

88.  Branli^an  v.  While,  7:5  111.  561.  2  X.  W.  71.".,   31    Am.   Rep.  409. 


49G  CIVIL    DAMAGE    ACTS.  [§   439 

liquors  though  the  sales  by  one  of  the  parties  may  have  begun 
at  a  date  subsequent  to  sales  made  by  another.91  And  generally 
it  is  decided  that  the  person  injured  may,  where  several  parties 
have  contributed  to  the  intoxication  causing  the  alleged  injury, 
join  them  as  defendants.92  And  it  is  declared  in  such  cases  that 
each  person  who  by  bartering,  selling,  or  giving  intoxicating 
liquors,  contributed  in  part  to  the  intoxication  causing  the  injury 
complained  of  is  liable  to  the  full  extent  of  the  injury.93  So  there 
may  be  a  recovery  from  one  defendant  of  all  the  damages  though 
sales  made  by  others  may  have  contributed  to  produce  the 
injury.94  And  where  the  statute  provides  that  the  sellers  of  in- 
toxicating liquors  who  shall  in  whole  or  in  part  have  caused  the 
intoxication  of  a  person  shall  be  liable  to  any  person  injured  there- 
by and  that  such  person  may  bring  an  action  jointly  or  severally 
against  such  persons,  where  sales  have  been  made  to  a  habitual 
drunkard,  it  is  decided  that  each  person  assisting  in  bringing  about 
such  condition  will  be  held  liable  for  the  acts  of  all  who  contrib- 
uted.95 So  where  a  wife  claimed  damages  resulting  from  a  par- 
ticular intoxication  of  her  husband  and  not  from  a  general  besotted 
condition,  it  was  held  that  a  joint  action  would  lie  against  the 


91.  Lane  v.  Tippy,  52  111.  App.  532.  94.  Buckworth  v.  Crawford,  24  111. 

92.  Illinois.— Stanley  v.  Leahy,  87  App.  G03;  Bowden  v.  Voorheis,  135 
111.  App.  465  (wife  may)  ;  Keller  v.  Mich.  648,  98  N.  W.  406.  See  also 
Lincoln,  67  111.  App.  404;  O'Leary  v.  Boyd  v.  Watt,  27  Ohio  St.  259;  Tay- 
Frisbey,  17  111.  App.  553.  lor   v.    Wright,    126    Pa.    St.    617,    17 

Indiana. — Fountain    v.    Draper,    49  Atl.  677.     But  see  Bellison  v.  Apland, 

Ind.  441.     Compare  Baker  v.  McCoy,  115  Iowa  599,  89  N.  W.  22: 

58  Ind.  215.  In  Huggins  v.  Kavanagh,  52  Iowa 

Massachusetts. — Bryant     v.     Tidge-  368,  3  N.  W.  409,  it  was  held  errone- 

well,   133  Mass.  86.  ous  to  change  the  jury  that   if  they 

Nebraska. — Jones  v.  Bates,  26  Neb.  were  unable  to  separate  the  damages 

693,  42  N.  W.  751,  4  L.  R.  A.  495.  to    which    the    defendant    contributed 

Ohio. — Eantz  v.  Barnes,  40  Ohio  St.  from   those   to   which   he   did   not   he 

43 ;  Rengler  v.  Lilly,  26  Ohio  St.  48.  would  be  liable  for  the  whole  amount 

But   sec   Morenus   v.   Crawford,    15  of  injury. 

Hun    C\.  Y. )    45.  95.  Earp  v.  Lilly,  217  111.  582,  75 

93.  Fountain    v.    Draper,    49    Ind.  N.  E.  552. 
441. 


§   440]  CIVIL    DAMAGE    ACTS.  |!t7 

several  persons  who  contributed  to  that  intoxication,  though  they 
were  conducting  seperate  places  of  business  when  the  liquor  was 
sold  the  husband,  and  did  not  act  in  concert.90  But  where  the 
injury  nsults  from  the  general  besotted  condition  of  a  person  and 
not  from  a  particular  act  of  intoxication  it  has  been  decided  that 
those  who  have  contributed  to  the  former  condition  by  the  sale  of 
the  Liquors  are  not  jointly  Liable  with  those  wha  have  contributed 
to  the  immediate  intoxixcation.1'7  And  in  Iowa  it  has  been  decided 
regarded  as  joint  wrongdoers,  but  each  is  severally  liable  for  the 
that  those  who  contribute  to  the  intoxication  of  a  person  are  not 
wrong  done  by  his  own  acts.08  And  in  Indiana  it  lias  been  decided 
that  where  persons  hold  separate  licenses  and  have  exxecuted 
separate  bonds,  a  joint  action  cannot  be  maintained  againsl  them 
and  their  sureties  upon  such  bonds." 

§  440.  Joint  liability  of  defendants — but  one  satisfaction. 

Where  parties  who  have  contributed  to  the  intoxication  are 
jointly  liable,  it  is  held  that  there  can  be  but  one  satisfaction 
for  the  injury.1  So  where  several  persons  contributed  to  the  in- 
toxication causing  the  injury  a  release  executed  by  a  plaintiff 
to  a  part  of  them  is  held  to  bar  a  recovery  against  the  others.2 
And  where  on  separate  trials  of  a  joint  action  different  judgments 
were  rendered  against  the  several  defendants  it  was  held  that  a 
satisfaction  of  one  of  such  judgments  would   discharge  the   re- 


06.     Faivre    v.     Mamlercheid,     117  Gauer,   66   Iowa  696,   24    X.   \Y.   513, 

Iowa  724.  90  X.  YV.  7(i.  citing  Richmond  v.  Shickler,  57   Iowa 

97.  Bitchner  v.  Ehlers.  4  1  [owa  40,  486.   10  X.  YY.  882;    Ennia  v.  Shiley, 

citing  La    France  v.   Kravor,  42   Iowa  47     Iowa    552;     Engleken    v.    Webber, 

143.  47  Iowa  558. 

!>s.  Richmond  v.  Shickler,  57  Iowa  )>'>•  Baker  v.  McCoy,  58  [nd.  215. 

486,  10  X.  YV.  882.  '•   Emory    v.    Addis,    71     111.    273; 

Whoever   by   the   wrongful    sale   of  Comstock  v.  Hopkins,  61  Hun  (X.  Y.) 

intoxicating  liquors  contributes  to  the  189,   15   X.   Y.  Supp.   908. 

formation  of  habits  of  intoxication  is  2.  Stanley    v.    Leahy,   87    111.    App. 

liable  only  Cor  the  damages  caused  by  165;    Aldrich    v.    Paraell,    147    Ma-.-, 

his     own     wrongful     act.       Flint     v.  409,  IS  X.  E.  170. 


498  CIVIL    DAMAGE    ACTS.  [§    441 

mainder  but  that  the  plaintiff  might  elect  which  one  to  enforce.3 
But  a  settlement  with  one  liquor  seller  for  intoxication  induced 
during  a  certain  period  does  not  preclude  a  recovery  from  an- 
other seller  for  intoxication  induced  during  the  same  period 
where  the  sales  were  separate  and  distinct,  each  producing  in- 
toxication to  which  the  other  in  no  way  contributed.4  And  where 
an  action  is  brought  against  two  sureties  a  dismissal  as  to  one  of 
the  sureties  or  his  representatives  in  law  is  not  a  release  of  the 
remaining  surety.5  And  an  action  upon  the  bond  of  a  saloon 
keeper  is  not  barred  by  a  judgment  against  the  saloon  keeper  and 
the  owner  of  the  premises  unless  actual  satisfaction  has  been  re- 
ceived.6 

Again,  even  though  parties  are  jointly  liable  a  partial  pay- 
ment by  one  of  them  of  the  amount  of  a  judgment  recovered 
would  not  discharge  the  others  as  a  partial  payment  is  not  a 
satisfaction.7 

§  441.  Owner  or  lessor — statute  making  him  liable— construction 
of. 

In  some  states  statutes  have  been  passed  creating  a  liability  on 

the  part  of  the  owner  of  the  premises  for  injuries  caused  by  one 

who,  becomes  intoxicated  thereon,  where  he  either  leases  the  prem- 

with    knowledge    that    liquor    is    to    be    sold    there    or   has 

knowledge  that  it  in  fact  so  sold.8     In  a  thorough  and  lengthy 

3.  Putney  v.  O'Brien,  53  Iowa  117,  Judge  v.  Flournoy,  74  Iowa  1G4,  37 
4  N.  W.  891.  N.  W.   130;   Mead  v.  Stratton,  87  N. 

4.  Jewell    v.   Welch.    117    Mich.   65,       Y.  40.3.  41   Am.  Rep.  386. 

75   X.    W.   283;    Miller   v.   Patterson,  Pleading.— Where   by   statute   the 

.31   Ohio  St.  419.  owner   of    premises    is    also    liable   an 

5.  Carlton  v.  Krueper  (Tex.  Civ.  allegation  of  ownership  of  such  prem- 
App.   1909).   115   S.   W.   619.  ises  against  a  defendant  in  an  action 

6.  Wanach  v.  People  Use  of  Alex-  against  him  and  the  seller  makes 
ander,   187  111.   110,  58  N.  E.  242.  them  jointly  liable.    Helmuth  v.  Bell, 

7.  McVey  v.  Manatt,  80  Iowa  135?,  150  111.  203,  37  N.  E.  230. 

45  X.  W.  548.  Where,      however,     the     action      is 

8.  X;1Lrio  v.  Keller,  141  111.  App.  against  the  seller  and  no  claim  in 
444;   Barnaby  v.  Wood,  50  Ind.  405;       any  way  is  made  against  the  owner 


§  ill] 


CIVIL    DAMAGE    ACTS. 


opinion  this  question  has  been  considered  by  the  Courl  of  Appeals 
in  New  York  and  ii  is  there  decided  thai  a  statute  enacting  thai 
the  lessor  of  premises,  with  knowledge  thai  they  are  to  be  used  for 
the  sale  of  intoxicating  liquors  shall  be  Liable  for  the  damages 

caused  by  the  one  intoxicated  by  liquors  sold  then-,  [a  constitu- 
tional, and  not  a  taking  of  property  without  duo  process  of  law.9 


of  the  building  a  description  of  such 
property  in  the  petition  will  be  re- 
garded as  surplusage  and  the  plain- 
tiff is  not  limited  to  the  proof  of 
damages  occasioned  by  sales  made  in 
the  building  so  described.  Gustafson 
v.  Wind,  (i-J  Iowa  281,  17  N.  W.  523. 
9.  Bertholf  v.  O'Reilly,  74  N.  Y. 
509,  30  Am.  Rep.  323,  aff'g  8  Hun 
1G.  The  following  extract  from  the 
opinion  is  valuable  in  this  connec- 
tion. "  The  question  we  are  now  to 
determine  is  whether  the  Legislature 
has  the  power  to  create  a  cause  of 
action  for  damages  in  favor  of  a  per- 
son injured  in  person  or  property  by 
the  act  of  an  intoxicated  person 
against  the  owner  of  real  property, 
whose  only  connection  with  the  in- 
jury is  that  he  leased  the  premises 
where  the  liquor  causing  the  intoxi- 
cation was  sold  or  given  away  with 
knowledge  that  intoxicating  liquors 
were  to  be  sold  thereon.  To  realize 
the  full  force  of  this  inquiry  it  is  to 
be  observed  that  the  leasing  of  prem- 
ises to  be  used  as  a  place  for  the  sale 
of  liquors  is  a  lawful  act  not  pro- 
hibited by  this  or  any  other  statute. 
The  liability  of  the  landlord  is  not 
made  to  depend  upon  the  nature  of 
the  act  of  the  tenant,  but  exists  ir- 
re  peel  ive  of  I  he  fad  whet  her  t  be  sale 
or  giving  away  of  the  liquor  was  law- 
ful or  unlawful.  That  is  whether  it 
was  authorized  by  the  License  Law 
of  the  Male,  or  was  made  in  \i 
tion  of  thai  law.  Nor  does  the  lia- 
bility depend  upon  any  question  of 
negligence  of  the   landlord   in  the  se- 


lection of  the  tenant,  or  of  the  tenant 
in  selling  the  liquor.  Although  the 
person  to  whom  liquor  is  sold  is  at 
the  time  apparently  a  man  of  sober 
habits  and,  so  far  as  the  vendor 
knows,  one  whose  appetite  for  strong 
drink  is  habitually  controlled  by  his 
reason  and  judgment,  yel  if  it  turns 
out  that  the  liquor  sold  causes  or  con- 
tributes to  the  intoxication  of  the 
person  to  whom  the  sale  or  gift  is 
made,  under  the  influence  of  which  he 
commits  an  injury  to  person  or  prop 
erty,  the  seller  and  his  landlord  are 
by  the  act  made  jointly  and  severally 
responsible.  The  clement  of  care  or 
diligence  on  the  part  of  the  seller  or 
landlord  does  not  enter  into  the  ques- 
tion of  liability.  The  statute  im- 
posed upon  the  dealer  and  the  land- 
lord, the  risk  of  an  injury  which 
may  be  caused  by  the  traffic.  It  can- 
not be  denied  that  the  liability  soughl 
to  be  imposed  by  the  aci  is  of  a  very 
sweeping  character  and  may.  in  many 

-,  entail  severe  pecuniary  liabil- 
ity,   and    its    language    may    include 

i  not  within  the  real  purpose  of 
the  enactment.  The  owner  of  a  build- 
ing who  leti  ii  to  be  occupied  for  the 
sale   of  general    merchai  hid- 

ing wines  and  liquors,  may,  under  the 
act,  be  made  liable  for  (lie  acts  of  an 
intoxicate  where    his    only 

fa ub  he  leased  the  pren 

for  a  .   including  the 

sale    of    intoxicating    liquors    in    the 
same  way  as  oilier  merchandise. 
liability   is   not   restricted  to  the  re- 
sults   of    intoxication     from     liquors 


>00 


CIVIL    DAMAGE    ACTS. 


[§  44:- 


But  in  New  York  it  is  also  held  that  to  render  the  liable  under  the 
statute  it  must  be  shown  that  he  had  knowledge  at  the  time  of  the 
execution  of  the  lease  that  the  premises  were  to  be  used  for  the 


sold  or  given  away  to  be  drank  on 
the  premises  of  the  seller.  There  is  no 
way  by  which  the  owner  of  real  prop- 
erty can  escape  possible  liability  for 
the  results  of  intoxication  where  he 
leases  or  permits  the  occupation  of 
his  premises,  with  the  knowledge  that 
the  business  of  the  sale  of  liquors  is 
to  be  carried  on  on  the  premises, 
whether  alone  or  in  connection  with 
other  merchandise,  or  whether  they 
are  to  be  sold  to  be  drank  on  the 
premises  or  to  be  carried  away  and 
used  elsewhere.  His  only  absolute 
protection  against  the  liability  im- 
posed by  the  act  is  to  be  found  in 
not  using  or  permitting  the  premises 
to  be  used  for  the  sale  of  intoxicating 
liquors.  The  question  whether  the  act 
under  consideration  is  a  valid  exer- 
cise of  legislative  power  is  to  be  de- 
termined solely  by  reference  to  con- 
stitutional restraints  and  prohibi- 
tions. The  legislative  power  has  no 
other  limitation.  If  an  act  can  stand 
when  brought  to  the  test  of  the  Con- 
stitution the  question  of  its  validity 
is  at  an  end,  and  neither  the  execu- 
tive nor  judicial  department  of  the 
government  can  refuse  to  recognize  or 
enforce  it  *  *  *  The  broad  question 
is  presented,  whether  the  act  tran- 
scends the  limits  of  the  legislative 
power,  in  subjecting  a  landlord  to 
liability,  under  the  circumstances 
mentioned  in  the  act.  Does  the  act, 
in  effect,  deprive  him  of  his  property 
without  'due  process  of  law'  in  the 

e  of  the  Constitution?  If  the  act 
can  be  sustained  as  to  the  landlord, 
it  is  clearly  valid  as  to  all  other  per- 

:  and  ils  validity  as  to  the  land- 
lord is  the  question  directly  presented 


in  this  case.  *  *  *  It  is  quite  evident 
that  the  act  of  1873  may  seriously 
interfere  with  the  profitable  use  of 
real  property  by  the  owner.  This  is 
especially  true  with  respect  to  a  build- 
ing erected  to  be  occupied  as  an  inn 
or  hotel,  and  especially  adapted  to 
that  use,  where  the  rental  value  may 
largely  depend  upon  the  right  of  the 
tenant  to  sell  intoxicating  liquors. 
The  owner  of  such  a  building  may 
well  hesitate  to  lease  his  property, 
when  by  so  doing  he  subjects  himself 
to  the  owner's  liability  imposed  by 
the  act.  The  act,  in  this  way,  indi- 
rectly operates  to  restrain  the  abso- 
lute freedom  of  the  owner  in  the  use 
of  his  property,  and  may  justly  be 
said  to  impair  its  value.  But  this  is 
not  a  taking  of  his  property,  within 
the  meaning  of  the  Constitution.  He 
is  not  deprived  either  of  the  title  or 
the  possession.  The  use  of  his  prop- 
erty for  any  other  lawful  purpose  is 
unrestricted,  and  he  may  let  or  use 
it  as  a  place  for  the  sale  of  liquors 
subject  to  the  liability  which  the  act 
imposes.  The  objection  we  are  now 
considering  would  apply  with  greater 
force  to  a  statute  prohibiting,  under 
any  circumstances,  the  traffic  in  in- 
toxicating liquors,  and  as  such  a 
statute  must  be  conceded  to  be  within 
the  legislative  power,  and  would  not 
interfere  with  any  vested  rights  of 
the  owner  of  real  property,  although 
absolutely  preventing  the  particular 
use  a  fortiori,  the  act  in  question 
does  not  operate  as  an  unlawful  re- 
straint upon  the  use  of  property. 
That  a  statute  impairs  the  value  of 
property  does  not  make  it  unconsti- 
tutional.     All    property   is   held    sub- 


?  I  i  1  j 


C1YJL    DAMAGE     \<  TS. 


501 


purpose  of  carrying  on  the  liquor  traffic.10  In  Iowa  it  has  been 
decided  that  in  order  to  render  the  owners  of  the  property  liable 
it  is  only  necessary  to  allege  and  prove  knowledge  by  them  of  the 
unlawful  sales  and  thai  allegation  and  proof  of  consent  is  not 
necessary,13  and  that  knowledge  on  the  part  of  an  owner  may  be 
shown  by  proving  the  general  reputation  of  the  place.12  Under 
such  a  statute  a  wife  who  owns  a  building  and  permits  her  husband 
to  occupy  the  same  or  a  part  thereof  with  knowledge  that  he  is 
engaged    in   selling   intoxicating   liquors   is   liable,    it    not    being 


ject  to  the  power  of  the  State  to  reg- 
ulate or  control  its  use,  to  secure  the 
general  safety  and  the  public  welfare. 
*  *  *  The  liability  imposed  upon  the 
landlord  for  the  acts  of  the  tenant  is 
not  a  new  principle  in  legislation. 
This  liability  only  arises  when  he  has 
consented  that  the  premises  may  be 
used  as  a  place  for  the  sale  of  liquors. 
He  selects  the  tenants,  and  he  may 
without  violating  any  constitutional 
provision,  be  made  responsible  for  the 
tenant's  acts  connected  with  the  use 
of  the  leased  property.  In  Dobbins  v. 
United  States,  lie,  U.  S.  395,  a  dis- 
tillery, with  the  real  and  personal 
property  used  in  connection  there- 
with, had  been  seized  and  condemned 
to  be  forfeited,  for  the  violation  by  a 
lessee  of  certain  provisions  of  the  act 
of  Congress  regulating  the  business 
of  distilling.  No  fraud  was  imputed 
to  the  owner  of  the  premises,  and  he 
was  not  charged  with  any  compli 
with  the  tenant  in  violating  the  law. 
The  owner  objected  that  his  property 
could  not  be  forfeited  for  (lie  acts  of 
the  tenant,  committed  withoul  his 
knowledge  or  consent.  Bui  the  court 
affirmed  the  decree  of  condemnation, 
and  in  his  opinion  Clifford,  J.,  say-: 
•  The  legal  conclusion  musl  lie  i hat 
the  unlawful  acts  of  the  distiller  hind 
the  owner  of  the  property   in   respect 


to  the  management  of  the  same,  as 
much  as  if  they  were  committed  by 
the  owner  himself.  Power  to  that  ef- 
fect the  law  vests  in  him  by  virtue 
of  his  lease;  and  if  he  abuses  his 
trust  it  is  a  matter  to  be  settled  be- 
tween him  and  his  lessor;  but  the 
acts  of  violation  as  to  the  penal  con- 
sequence to  the  property  are  to  be 
considered  just  the  same  as  if  they 
were  the  acts  of  the  owner.'  Our 
conclusion  is  that  the  act  of  1*7  :i 
is  a  constitutional  enactment,  it  is 
doubtless  an  extreme  exercise 
legislative  power,  but  we  cannot  say 
that  it  violate-  any  express  or  im- 
plied prohibition  of  the  Constitu- 
tion."    Per    Andrews,   J. 

io.  O'Rourke  v.  Piatt,  67  Hun  |  \\ 
Y.)    71,  21   X.  V.  Supp.  1118. 

The  question  of  knowledge  is 
one  of  fact  for  the  jury. — Mead  v. 
St  rat  ton,  87  X.  V.  493,  41  Am.  Rep. 
386. 

ll«  Judge    v.    Flournoy,    74    [owa 
164,  ::7  X.  \V.  130,  followed  in  Ji 
\.  I ('Conner,  7 1   [owa    166,  :i7   X.  W. 
1.31. 

Compare  Myers  v.  Kirt.  (it  Iowa 
27.  1!)  X.  W.  846,  holding  knowledge 
and  consent  both  necessary.  Meyers 
v.   Kirt.  :,7    [owa    121.   in  X.  W.  828. 

i-.  Judge  v.  O'Connor,  74  Iowa  166, 
37   X.  W.   131. 


502 


CIVIL    DAMAGE    ACTS. 


[§  442 


essential  to  the  liability  that  the  strict  relation  of  the  landlord  and 
tenant  shall  exist.13 

§  442.  Owner  bound  by  knowledge  of  agent. 

Under  a  statutory  provision  creating  a  liability  on  the  part  of 
the  landlord  "  having  knowledge  that  intoxicating  liquors  are  to 
be  sold  "  upon  the  premises,  the  doctrine  will  be  applied  that 
knowledge  of  the  agent  will  be  imputed  to  his  principal  and 
where  it  appears  that  an  agent  with  power  to  lease  the  premises 
had  such  knowledge,  the  owner  cannot  escape  liability  on  the 
ground  that  he  had  no  actual  knowledge.14 


13.  Mead  v.  Stratton,  87  N.  Y.  493, 
41   Am.   Rep.   38(5. 

14.  Hall  v.  Germain,  131  N.  Y.  536, 
30  N.  E.  591.  The  court  said,  per 
Andrews,  J.  "  We  concur  in  the  opin- 
ion of  Judge  Dwight  at  the  General 
Term,  that  knowledge  by  the  agent, 
Edward  B.  Germain,  at  the  time  he 
leased  the  premises  for  a  saloon,  that 
intoxicating  liquors  were  to  be  sold 
therein,  and  their  subsequent  use  for 
that  purpose  is  imputable  to  his  prin- 
cipal. The  words  of  the  statute, 
'  and  having  knowledge  that  intoxi- 
cating liquors  are  to  be  sold  therein,' 
were  inserted  to  prevent  an  interpre- 
tation which  would  subject  the  land- 
lord to  liability  when  intoxicating 
liquors  should  in  fact  be  sold  on  the 
leased  premises,  although  they  were 
not  let  for  that  purpose,  and  the 
landlord  did  not  know  or  understand 
at  the  time.  The  lease  was  made  that 
liquor  was  to  be  sold  therein.  The  lia- 
bility of  a  lessor  under  the  act  is  to 
be  determined  by  his  knowledge  at  the 
time  the  lease  was  given.  If  he  does 
not  then  know  that  the  premises  are 
to  be  used  for  the  sale  of  liquor  and 
does  not  intentionally  shut  his  eyes, 
he  is  not  liable  under  the  act,  al- 
though the  tenant   does   subsequently 


during  the  term  use  the  premises  for 
the  sale  of  liquor.  It  would  be  most 
unreasonable  to  charge  the  landlord 
with  liability,  who  let  his  premises, 
not  knowing  that  they  were  to  be 
used  for  the  sale  of  liquor,  on  the 
mere  ground  that  the  premises  were 
in  fact  so  used  by  the  tenant.  The 
landlord  could  not  terminate  the  lease 
because  liquor  was  sold  therein,  un- 
less it  was  so  provided  in  the  lease, 
or  unless  the  sale  by  the  tenant  was 
unlawful,  that  is  to  say,  without  his 
being  licensed  to  sell.  If  the  sale  by 
the  tenant  was  unlawful,  that  ipso 
facto  under  the  statute  works  a  for- 
feiture of  the  lease,  and  if  the  land- 
lord, after  knowledge  that  the  for- 
feiture has  been  incurred,  failed  to  en- 
force the  forfeiture  and  enter  upon 
the  premises,  a  different  question 
would  be  presented.  The  landlord  is 
not  bound  to  insert  a  covenant  on  the 
part  of  the  tenant  in  the  lej.se,  not 
to  sell  liquor  on  the  premises,  in  or- 
der to  escape  liability.  He  can  only 
be  made  liable  when  it  is  shown  that 
he  knew  when  the  lease  was  executed 
that  the  premises  were  to  be  used  for 
the  sale  of  liquor.  It  would  not,  we 
apprehend,  be  sufficient  to  establish 
his  liability  under  the  act  that  he  let 


CIVIL    DAMAGE    A(  TS. 


503 


§  443] 

§  443.  Owner  or  lessor — exemplary  damages. 

The  owner  of  a  building  may  be  liable  for  exemplary  damages 

under  the  statute  as  well  as  the  seller.15  So  knowledge  on  the 
part  of  the  landlord  that  promises  leased  by  him  are  to  1"-  used 
for  the  sale  of  intoxicating  liquor  is  held  in  Illinois  to  render 
him  also  liable  for  exemplary  damages.16  The  right,  however, 
to  recover  exemplary  damages  against  a  landlord  does  nol  depend 
entirely  on  the  act  of  the  tenant,  but  knowledge  on  the  part  of  the 
former  of  the  circumstances  under  which  the  liquor  was  sold  to  a 
person  must  he  shown.17  So  in  the  application  of  the  doctrine 
that  to  justify  an  award  of  exemplary  damages  there  must  be 
circumstances  of  abuse   or  aggravation,   it  has  been  decided    in 


the  premises  for  a  store,  except  the 
jury  should  find  that  he  knew  or  had 
reason  to  know  that  the  sale  of  liq- 
uor would  be  a  part  of  the  business, 
to  be  carried  on.  This  being  the  con- 
struction of  the  statute,  it  is  appar- 
ent that  the  words  '  having  knowl- 
edge,' etc.,  were  not  inserted  to 
change  in  these  cases  the  rule  that 
the  knowledge  of  the  agent  of  any 
facts  which  are  part  of  the  res  gestae 
of  his  agency,  is  imputed  the  prin- 
cipal. The  civil  obligations  and  lia- 
bilities of  the  landlord  in  these  as  in 
other  cases  of  agency  are  to  be  reg- 
ulated  upon  this  principle.  The  land- 
lord's knowledge  may.  like  any  other 
fact,  be  established  by  direct  or  cir- 
cumstantial  evidence,  but,  however, 
established,  it  must  relate  to  the  time 
of  the  lease.  Where  the  lease  is  at 
will  or  sufferance,  <>r  the  occupation 
of  the  premises  is  by  mere  permission 
of  the  owner,  without  any  lease,  it 
would  be  the  duty  of  the  owner  to  in- 
terpose on  the  fact  coming  to  his 
knowledge  thai  liquor  was  bein 
on  the  premises,  if  he  would  protect 
himself  thereafter  from  liability.  In 
the    present    case    the    agent    let    the 


premises  knowing  that  they  were  to 
be  used  for  the  sale  of  liquor.  They 
were  occupied  for  years  as  a  Baloon, 
and  rents  were  received,  and  as  the 
evidence  tends  to  show,  accounted  for 
to  the  principal,  although  the  latter 
had  no  actual  knowledge  of  the  pur- 
pose for  which  the  premises  were 
rented  or  used.  But  under  the  gen- 
eral principle,  knowledge  of  the  agenl 
was  knowledge  of  the  principal. 
The  statute  sin  mid  have  a  just  and 
fair  construction.  It  would  afford  a 
wide  opportunity  for  evasion  if  a 
landlord  could  leave  the  management 
of  his  property  to  his  agenl  and  take 
the  benefit  of  his  leases  for  the  busi- 
n<  39  of  liquor  selling,  and  escape 
liability  on  the  ground  thai  he  had 
no  actual  knowledge  that  the  prem- 
ere  lei  for  such  a  purpose,  al- 
though the  agenl  at  the  time  if  the 
letting  had  such  knowledge. 

15.  Backetl  v.  Smelsley,  77  111. 
109. 

«<;.  Na  jie  v.  Keller,  1-11  111.  App. 
444. 

it.  Ketcham  v.  Fox.  52  Hun  (N. 
V.)   284,  5  N.  Y.  Supp.  272. 


504 


CIVIL    DAMAGE    ACTS. 


[§    443 

New  York  under  a  statute  creating  a  liability  on  the  part  of  the 
landlord  that  wherein  an  action  by  a  widow  against  the  seller 
and  landlord  to  recover  for  the  death  of  her  husband,  there  is 
evidence  that  the  plaintiff  requested  the  seller  not  to  sell  liquor 
to  her  husband  but  there  was  no  evidence  that  the  landlord  had 
any  knowledge  of  such  request,  it  is  error  to  charge  the  jury  that 
they  might  award  exemplary  damages  against  both.18 


18.  Reid  v.  Terwilliger,  116  N.  Y. 
530,  22  N.  E.  1091.  The  court  said, 
per  Potter,  J.  "  The  substance  of  the 
statute  is,  that  whenever  the  person, 
property  or  means  of  support  of  cer- 
tain classes  of  persons  shall  be  in- 
jured by  any  intoxicated  person  or, 
in  consequence  of  the  intoxication  of 
any  person,  such  classes  of  persons 
shall  have  a  right  of  action,  and  that 
the  person  who  shall  have  sold  or 
given  the  liquors  causing  the  intoxi- 
cation in  any  degree,  and  any  person 
owning,  renting  or  permitting  the 
occupancy  of  the  premises  having 
knowledge  that  liquors  were  to  be  sold 
therein,  shall  be  liable  severally  and 
jointly  for  all  damages  sustained  and 
for  exemplary  damages.  The  Legis- 
lature, have,  in  this  statute,  defined 
the  elements  of  a  new  cause  of  action 
and  who  may  be  liable  for  it.  The 
1  gislature,  however,  made  no  change 
in  the  rules  of  ascertaining  and  de- 
termining the  damages,  or  the  limits 
of  liability  in  the  newly-created 
causes  of  action,  but  left  them  sub- 
ject to  the  existing  rules  of  damages, 
and  to  the  facts  established  upon  the 
trial.  The  damages  recoverable  in 
actions  of  torts  or  wrongs  have  long 
since  been  classified  into  compensa- 
tory and  punitive  or  exemplary.  Com- 
pensatory  damages  were  not  recover- 
able, except  upon  proof  of  certain 
facts,  and  punitive  damages  were  not 
recoverable  without  proof  of  facts  ad- 
ditional to  the  facts  required  to  re- 


cover compensatory  damages.  The 
distinction  between  the  two  kinds  was 
quite  as  well  defined  and  are  as  es- 
sential as  the  distinction  between  dif- 
ferent causes  of  action.  Compensa- 
tory damages,  as  indicated  by  the 
word  employed  to  characterize  them, 
simply  make  good  or  replace  the  loss 
caused  by  the  wrong.  Exemplary 
damages,  as  also  indicated  by  the 
word  employed  to  characterize  them, 
besides  making  good  the  loss,  serve 
to  punish  and  make  an  example  of 
the  wrongdoer.  Voltz  v.  Blackmar, 
64  N.  Y.  440-444,  Fisher  v.  Met.  El. 
R.  Co.,  34  Hun  433;  Rawlin  v.  Vid- 
vard,  Id.  205,  and  the  authorities 
cited  by  the  justice  in  delivering  the 
opinion  of  the  General  Term  at  page 
208.  Compensatory  damages  proceed 
from  a  sense  of  natural  justice,  and 
are  designated  to  repair  that  of  which 
one  has  been  deprived  by  the  wrong 
of  another.  To  this  species  of  dam- 
age the  Legislature  or  the  courts 
have  from  time  to  time  in  certain 
classes  of  wrongs,  added  another  kind 
of  damage  when  their  commission 
was  prompted  or  characterized  by 
motives  of  malice,  cruelty,  oppression, 
wantonness  or  recklessness.  It  may 
be  reasonably  presumed  that  the  Leg- 
islature, knowing  that  it  was  giving 
a  cause  of  action  for  an  additional 
wrong,  and  wishing  to  stamp  this 
wrong  with  the  same  character  as 
other  wrongs,  declared  from  the  out- 
set, without  waiting  the  doubtful  or 


CIVIL    DAMAGE    ACTS. 


505 


§  444] 

§  444.  Owner — extent  of  lien  against. 

The  judgment  recorded  against  the  seller  is  held  in  Iowa  to  be 
absolutely  conclusive  as  to  the  amount  to  which  the   landlord's 


dilatory  action  of  the  courts,  that 
exemplary  damages  might  be  recov- 
ered in  this  class  of  actions.  It  can- 
not be  supposed  the  Legislature  in- 
tended to  go  further  than  to  place 
this  wrong  upon  the  same  plane  with 
other  wrongs  where  exemplary  dam- 
ages may  be  recoverable  when  the 
evidence  upon  the  trial  will  justify 
such  damages  in  accordance  with 
well-established  and  recognized  rules. 
A  contrary  conclusion  would  render 
one  wdio  rents  a  building  or  permits 
it  to  be  occupied  without  rewind, 
knowing  that  liquors  are  to  be  sold 
therein,  under  a  license  from 
the  public  authorities,  and  with  no 
other  connection  with  the  statutory 
wrong-doers,  and  without  other  per- 
sonal fault  or  misconduct,  liable,  at 
least,  in  part,  to  the  punishment  in- 
dicted for  a  violation  of  the  criminal 
laws.  I  am  not  willing  to  give  such 
construction  to  the  statute  in  ques- 
tion. Neither  its  language  nor  its 
purpose  require  or  would  justify  it. 
It  is  better  when  established  legal 
principles  are  to  be  so  far  departed 
from,  or  so  radically  changed  in  pro- 
nouncing   or    affirming    a    judg at, 

that  it  should  be  done  by  the  law- 
making rather  than  the  law-interpret- 
ing power.  All  the  adjudicated  cases 
save  one,  and  that  one  by  a  divided 
court,  so  far  as  I  have  been  informed, 
have  held  in  harmony  with  these 
views.  Rawlins  v.  Vidvard,  34  Hun 
205,  before  referred  to  in  a  very  well 
considered  opinion  of  the  General 
Term,  fourth  department,  holds  thai 
where  an  action  is  brought  against 
the  owner  of  premises  under  the  Civil 
Damage  Aci  by  a  wife  to  recover  flam- 
ages  for  injuries,  etc.,  through  a  sale 


of  intoxicating  liquors  by  the  tenant 
to  her  husband,  exemplary  dam 
cannot  be  awarded  by  the  jury  with- 
out proof  of  aggravated  circumstances 
with  which  the  defendant  is  con- 
nected. Davis  v.  Standish,  20  Hun 
008-015:  Jackson  v.  Brookins,  5  Id. 
530,  535;  Ketcham  v.  Fox,  52  Id.  284; 
Franklin  v.  Sehermerhorn,  8  Hun  112, 
holds  that,  'although  the  jury  in  this 
class  of  cases  have  the  right  to  give 
exemplary  damages,  yet  the}-  should 
only  be  given  where  there  are  circum- 
stances of  abuse  and  aggravation 
proved  against  the  vender  of  the  liq- 
uor. 'The  question  under  consider- 
ation was  before  this  court  in  one 
aspect  in  Neu  v.  MeKechnie,  95  N.  Y. 
032,  47  Am.  Rep.  89.  It  was  in  re- 
lation to  what  was  proper  evidence  to 
warrant  a  recovery  of  exemplary  dam- 
ages in  an  action  under  this  statute 
againsl  the  vendor.  The  case  r« 
nize  the  established  rule  that  in  order 
to  recover  exemplary  damages  legiti- 
mate evidence  must  be  given  for  that 
purpose.  All  the  cases  which  have 
been  derided  require  such  proof  to  be 
given  against  the  vendor,  to  authorize 
such  recovery,  notwithstanding  the 
peculiar  phraseology  of  the  statute, 
and  yet  it  may  lie  just  as  reasonably 
argued  from  that  wording,  that  a  re- 
covery  of  exemplary  damages  may  be 
had  against  the  vendor  without  any 
proof  of  the  facts  requiring  it  in 
.i! '.,  r  cases.  The  statute  a  fter  de- 
claring the   wrong,   specifies   the   per- 

who  may  have  an  action  and 
persons  liable  therefor,  viz..  the  ven- 
dor  and  owner   in   the  circumstances 
specified,   severally  or  jointly   for  all 
dan  lined  and  for  exemplary 

damages.      If   this   language,   alike  ap- 


■    i 


CIVIL    DAMAGE    ACTS. 


[§  445 


property  should  be  subjected.19  And  where  it  is  sought  to  have 
a  judgment  against  a  liquor  seller  made  a  lien  on  the  saloon 
property  leased  by  him,  the  lessor  cannot  have  the  judgment 
divided,  and  a  part  of  it  only  made  a  lien,  on  the  ground  that  he 
did  not  know  of  the  wrongful  sales  until  some  time  after  they 
had  begun.20  Where  the  action  is  a  joint  one  against  the  seller 
and  the  owner  of  the  building  and  a  lien  is  asked  against  the 
building,  the  petition  is  held  in  that  state  to  be  one  "  affecting 
real  estate"  within  the  meaning  of  a  statute  charging  third 
persons  with  notice  of  such  a  petition.21 

§  445.  Notice  not  to  sell. 

Notice  to  a  saloon  keeper  not  to  sell  liquor  to  a  certain  person 
need  not  be  given  where  none  is  required  by  statute.22  In  some 
states,  however,  it  is  provided  by  statute  that  such  a  notice  must 
be  given  to  the  seller,  and  where  notice  is  so  required  it  must  be 
given  to  entitle  one  to  a  recovery,23  and  must  be  given  by  the 


plicable  to  both  vendor  and  owner 
does  not  relieve  the  plaintiff  from 
proving  the  requisite  personal  facts 
for  exemplary  damages  against  the 
vendor,  why  should  it  relieve  plain- 
tiff from  proving  the  necessary  per- 
sonal facts  to  recover  exemplary  dam- 

; g    against   the   owner?      I    do    not 

think  the  fact  that  the  Legislature 
has  enabled  the  injured  party  to  bring 
a  joint  action  against  the  vendor  of 
the  liquor  and  the  owner  of  the  prem- 
affects  the  decision  of  the  ques- 
tion under  consideration.  But  it  is 
claimed  in  behalf  of  the  respondent 
that  even  if  the  charge  in  relation  to 
the  right  of  the  plaintiff  to  recover 
in  this  case  exemplary  damages 
against  the  owner  of  the  premises  was 
erroneous,  yet  the  verdict  in  this  case 
embraced  no  exemplary  damages. 
Perhaps  that  may  be  so.  The  verdict 
was   quite   moderate   in   amount,   but 


how  is  this  court  to  be  assured  of  the 
truth  of  the  statement  that  the  ver- 
dict contained  no  exemplary  damages? 
This  court  cannot  resolve  itself  into 
a  jury,  or  an  inquisition  to  investi- 
gate the  evidence  presented  in  the 
appeal  book.  This  court  has  jurisdic- 
tion to  pass  upon  questions  of  law, 
and  in  respect  to  the  directions  of 
the  trial  court  to  juries,  to  deter- 
mine whether  the  action  was  tried 
upon    correct    legal    principles." 

19.  McVey  v.  Manatt,  80  Iowa  132. 
45  N.  W.  548,  citing  Buckham  v. 
Grape,  65  Iowa  535,  17  N.  W.  755, 
22  N.  W.  <i(i4. 

20.  Arnold  v.  Barkalow,  73  Iowa 
183,  34  N.   VV.  807. 

21.  O'Brien  v.  Putney,  55  Iowa  292, 
7  N.  W.  015. 

22.  Lane  v.  Tippy,  52  111.  App.  532. 

23.  Pegram  v.  Stortz,  31  W.  Va. 
220,  (i  S.  E.  485. 


§  445]  CIVIL    DAMAGE    At  TS.  507 

person  designated  by  statute.24     It  is  held  sufficient  where  the 
seller  is  a  licensed  dealer  to  serve  the  notice  upon  <  ither  him  or 
his  agent  unless  the  statute  otherwise  providt  -.'-'"'     B  il   '.'.,•  re  the 
statute  provides  only  for  a  notice  to  the  person  selling  the  liq 
it  has  been  held'  that  it  must  be  served  personally  upon  the  one 
licensed.-0     But  though  the  statute  may  require  the  notice  to  a 
seller  to  be  in  writing  yet  the  seller  may  waive  a  written  n< 
and  in  such  a  case  an  oral  notice  is  sufficient.-7     In  some  ca- 
is  necessary  under  the  statute  that  the  notice  contain  some  refer- 
ence or  statement  in  regard  to  the  relationship  between  the  pel 
giving  the  notice  and  the  person  referred  to  therein.28     Where  the 
statute  simply  provides  that  the  wife  of  one  having  the  habit 
of  drinking  liquor  to  excess  may  give  notice  to  any  person  re- 


What        constitutes        notice. — 

The  word  "  notice "  as  used  in  a 
statute  providing  for  a  penalty  for  a 
sale  to  a  man  after  notice  from  hi* 
wife,  does  not  necessarily  mean  a 
notice  in  writing  but  is  hold  to  be 
synonymous  with  information,  intelli- 
gence, knowledge.  So  verbal  notice 
to  an  agent  who  has  control  of  the 
business  has  been  held  sufficient. 
Jackson  County  v.  Schmid  (.Mo. 
App.  1910.),  124  S.  W.  1074. 

Sufficiency  of  notice  see  Taylor  v. 
Carroll,  145  Mass.  95,  13  N.  E.  348; 
Casey  v.  Painter.  50  Ohio  St.  527,  38 
X.  E.  24. 

Pleading — notice  need  not  be 
set  out. — A  notice  by  a  wife  to  a 
saloon  keeper  not  to  sell  liquor  to  her 
husband  need  not  be  set  out  in  an 
action  against  the  seller  for  damages 
caused  by  such  a  sale.  Riden  v. 
Grimm  Bros.,  97  Tenn.  220,  36  S.  W. 
1097,  35  L.  R.  A.  587. 

Statute  as  to  notice— right  of 
action  acquired. — A  statute  pro- 
viding for  the  giving  of  notice  as  a 
condition  to  the  right  to  recover  dam- 
ages does  not  affect  a  right  of  action 


which  had  accrued  under  a  prior 
statute.  Quinlan  v.  Welch,  141  N.  Y. 
158,  36  N.  E.  12,  aff'g  09  Hun  585, 
23  N.  Y.  Supp.  903;  Reinhardt  v. 
Fritzsche,  09  Hun  (X.  Y.)  505,  23 
N.  Y.  Supp.  958. 

24.  Engle  v.   State,  97   Ind.    122. 

25.  Snyder  v.  Launt,  1  App.  Div. 
IX.  Y.)    142,  37  N.  Y.  Supp.  408. 

26.  Eilke  v.  McGrath,  LOO  Ky.  537, 
38  S.  \V.  877. 

Sufficiency  of  allegation  of 
service  on  seller. — An  allegation  of 
service  of  the  notice  on  the  seller  is 
held  sufficient  without  alleging  that 
it  was  delivered  to  him.  Birkman  v. 
Fahrenthold,    (Tex.  Civ.  App.   190S), 

ins.  w. 

And  notice  to  the  seller  is  sufficient 
and  it  is  uol  necessary  to  aver  that 
such  notice  was  both  given  to  the 
seller  and  the  owner  or  lessor  i 
the  premises.  Graham  v.  Cooley, 
7:5  Ohio  St.  127.  76  X.  E.  397. 

-'7.  state  v.  Mann,  (Ind.  A.  *  . 
1909),  86  X.  E.  876. 

888.  Sackett  v.  Ruder,  152  Mas-. 
397,  2.-)  X.  E.  736,  9  I..  R.  A.  391. 


508  CmL    DAMAGE    ACTS.  [§§   446,447 

questing  him  not  to  sell  or  deliver  such  liquor  to  her  husband  but 
prescribes  no  particular  form  of  notice  it  will  be  sufficient  if  the 
notice  given  conveys  in  clear  and  unmistakable  terms  the  sub- 
stance of  the  requirement  of  the  statute.29  And,  unless  the  statute 
so  requires,  it  is  not  necessary  that  the  notice  be  signed  by  the 
person  giving  it,  it  being  sufficient  if  signed  by  another  at  such 
person's  request  with  a  full  knowledge  of  the  nature  thereof.30 

§  446.  Notice  not  to  sell — effect  of — damages. 

Where  after  service  by  a  wife  of  notice  to  a  seller  not  to  sell 
her  husband  it  appeared  that  the  defendant  did  sell  him  liquors 
on  a  certain  day  on  which  day  the  latter  commenced  a  protracted 
spree  the  seller  was  held  properly  liable  for  all  damages  resulting 
therefrom.31  And  it  is  decided  that  there  may  be  a  recovery  for 
each  sale  made  after  delivery  of  the  notice.32  Again  where  the 
proper  notice  has  been  given  it  has  been  held  to  be  no  defense  to 
an  action  for  the  statutory  damages  to  set  up  that  the  seller  did 
not  know  that  the  person  named  in  the  notice  was  the  one  to 
whom  he  sold  the  liquor.33  And  it  has  also  been  held  that  where 
the  required  notice  is  given  there  may  be  a  recovery  on  the  bond 
though  it  was  executed  after  such  notice  was  given  and  the  sale 
was  not  made  at  the  place  to  which  the  notice  was  addressed.34 

§  447.  Sales    to    prohibited    classes    generally — minors — intoxi- 
cated persons. 
Where  sales  to  particular  classes  of  persons  such  as  minors  or 
intoxicated  persons  are  made  unlawful  within  the  meaning  of  a 


29.  Kennedy  v.  Saunders,  142  Mass.  30.  Finnegan    v.    Lucy,    157    Mass. 

0,  6  \T.  E.  734.  holding  the  following  439,  32  N.  E.  656. 

sufficient:   "My  husband  has  been  in  81.  Johnson  v.  Johnson,  100  Mich. 

the  habit  of  getting  liquor  here  and  326,  58  N.  W.  1115. 

coming   home   drunk.   *   *   *     I   don't  32.  Kennedy  v.  Saunders,  142  Mass. 

want  you  to  give  him  any  more  drink  ft,   6  N.   E.  734. 

and  if  you  do  I  shall  take  means  to  33.  Weber  v.  Wiggins,  11  Ohio  Civ. 

protect  myself."  Ct.  18. 


§  447]  CIVIL    DAMAGE    ACTS.  509 

civil  damage  act  the  saloon  keeper  is  bound  to  know  at  his  peril 
whether  or  not  the  person  to  whom   he   is  selling  comes  within 

either  of  such  classes.35  So  whore  the  law  prohibits  sales  to  cer- 
tain classes  of  persons  such  as  minors  or  intoxicated  persons  and 
a  seller  relies  on  compliance  with  the  law  he  has  the  burden  of 
alleging  and  proving  a  full  compliance  with  the  conditions  im- 
posed thereby.36  And  where  the  statute  relieves  a  seller  from 
liability  in  case  of  a  sale  to  a  minor  where  the  sale  is  made  in 
good  faith,  with  the  belief  that  the  minor  is  of  age,  and  there  are 
a<Hid  grounds  for  such  belief,  the  mere  fact  that  the  minor  had 
the  appearance  of  being  of  age  is  no  defense  unless  accompanied 
by  the  other  statutory  requisites.37     So  it  was  held  error  to  charge 


34.  Rintleman  v.  Halm,  20  Tex. 
Civ.  App.  244,  49  S.  W.   174. 

35.  Sandige  v.   Widman,   12   S.  D. 

101,  SO  X.  W.  104. 

Knowledge  on  the  part  of  the 
seller  that  the  purchaser  was  a  per- 
son in  the  habit  of  becoming  intoxi- 
cated rs  not  essential,  unless  the 
statute  predicates  the  right  to  a  re- 
eovery  upon  the  fact  of  knowledge 
also.  Bennett  v.  Miller's  Estate 
(Mich.  1!M<M.  125  X.  W.  2,  citing 
McMahon  v.  Dumas,  !)ti  Mich.  470, 
.-.1;   X.  W.   14. 

"  Habitual  drunkard  "  as  used 
in  penalty  statute  construed, 
"To  he  an  habitual  drunkard,  a 
person  does  not  have  to  be  drunk 
all  the  time,  nor  necessarily  incapac- 
itated from  pursuing,  during  the 
working  hours  of  the  day,  ordinary, 
nii-killcd  manual  labor:  One  i-  an 
habitual  drunkard,  within  the  inclin- 
ing of  the  divorce  laws,  who  has  a 
fixed  habit  of  frequently  getting 
drunk.  It  is  not  necessary  that  he 
be  constantly  or  universally  drunk, 
nor  that  he  have  inure  drunken  than 
sober   hours.      It    is    enough    that    he 


have  the  habit  so  firmly  fixed  upon 
him  that  he  becomes  drunk  with 
recurring  frequence  periodically,  or 
that  he  is  unable  to  resist  when  the 
opportunity  and  temptation  i-  j  re 
sented."  Jackson  County  v.  Schmid 
1  Mn.  App.  1910),  124  S.  \V.  1(174. 
quoting  from  Page  v.  Page,  4.'!  Wash. 
293,  86  Pac.  582,  6  L.  R.  A.  1  X.  S.) 
914,   117   Am.   St.   Rep.    1054. 

36.  League    v.    Ehmke,     120    Iowa 
41;  1.   94    X.   \Y.   938.     See   also   ■' 
zewski    v.    Allen,    117    Iowa    632,    '.'1 
X.  \V.  941,  holding  that   in  an  action 
by  a  mother  for  injury  to  her  m 

of  Support  by  tin1  death  of  her  BOH 
from  alleged  illegal  -ale  of  liquor  to 
him  the  burden  was  upon  the  defend- 
ant to  show  that  the  sales  were 
lawful. 

37.  Carlton  v.  Krueger    (Tex.   Civ. 
App.   1909),   115   S.   W.  619,   holding 

that  whatever  force  the  fact  of  the 
minor's  appearance  might  have  been 
entitled  to  a-  a  circumstance  as  tend- 
ing to  show  that  the  seller  in  reality 
entertained  the  belief  that  he  was 
of  age  was  losl  where  such  seller  was 
presenl   and   failed  to  testify. 


510  CIVIL    DAMAGE    ACTS.  [§   443 

the  jury  that  if  the  sale  to  a  minor  was  made  in  good  faith  the 
defendant  would  not  be  liable,  without  also  charging  that  to 
discharge  the  defendant  they  must  find  that  there  were  reasonable 
grounds  to  believe  the  minor  was  of  age.38 

§  44.3.  Sales  to  minor — action  by  parents  generally. 

A  frequent  provision  of  the  statute  is  one  giving  a  right  of 
action  to  parents  in  case  of  a  sale  to  a  minor.  So  where  parents 
dependent  upon  their  son  for  support  are  deprived  thereof  by 
reason  of  his  intoxication  they  may  join  in  an  action  to  recover 
for  such  injury.39 

And  where  as  the  result  of  furnishing  liquor  to  a  child  a 
legal  obligation  devolves  upon  the  parent  to  support  such  child 
they  may  recover  therefor  from  the  ones  causing  or  contributing 
to  such  condition.40  And  where  the  statute  provides  for  a  recovery 
by  a  parent  in  case  of  a  sale,  giving  or  furnishing  of  liquor  to  a 
minor  a  charge  that  a  plaintiif  must  establish  a  "  sale  "  is  mis- 
leading and  prejudicial.41  But  where  in  a  petition  setting  forth 
a  right  of  action  to  recover  for  the  sale  of  liquors  to  a  minor,  the 
petition  lays  damages  in  a  stated  amount  and  enumerates  certain 
items  of  special  damage,  which  in  the  aggregate  amount  to  the 
exact  sum  sued  for,  the  recovery  of  the  plaintiff  must  be  limited 
to  the  special  damages  alleged  and  there  can  be  no  recovery  for 
general  damages.42  And  it  is  competent  for  a  defendant  to  prove 
in  mitigation  of  damages  that  the  plaintiff's  minor  son  was  in  the 
habit  of  becoming  intoxicated  prior  to  the  time  when  it  is  claimed 
defendant  furnished  him  with  liquor;  though  whether  such  evi- 
dence would  mitigate  the  damages  in  a  particular  case  would  de- 
pend upon  the  other  circumstances  disclosed.43     Again  where  in 

38.  Creel  v.  Cordon,  44  Tex.  Civ.  41.  Liebler  v.  Carrel,  155  Mich.  196„ 
App.  367,  98  S.  W.  387.  118  N.   W.   975. 

39.  Helmuth  v.  Bell,  150  111.  263,  42.  Wright  v.  Smith,  128  Ga.  432, 
37  X.  E.  230.  57  S.  E.  684. 

40.  Danley  v.  Hibbard,  222  111.  88,  43.  Liebler  v.  Carrel,  155  Mich. 
78  X.  E.  39.  19G,  118  N.  W.  975. 


§§  449,450]  CIVIL    DAMAGE    A(  511 

an  action  by  a  parent  for  sales  to  a  minor  specific  acts  of  intoxi- 
cation an-  proved  by  the  plaintiff  it  is  competent  to  prove  thai 
the  intoxication  was,  in  fact,  caused  by  liquor  furnished  by 
another.44     The  damages  recoverable  for  injuries  resulting  from 

sales  to  a  minor  can  not  be  lessened  by  evidence  of  salee  to  Mich 
minor  by  others.45 

§  449.  Sales  to  minor — action  by  father. 

As  a  father  would  be  entitled  to  the  wages  of  his  son  he  suffers 
a  direct  pecuniary  loss  by  the  death  of  the  son.46  And  the  father 
may  sue  where  he  and  his  wife  are  divorced  and  the  father  has 
been  awarded  the  custody  of  the  minor.47  So  a  parent  is  out  it  h  d 
to  the  services  of  a  son  and  if  deprived  of  means  of  support  by 
reason  of  the  son's  death  occasioned  by  sales  of  intoxicating  liq- 
uors to  him  may  recover  therefor.48  And  this  is  a  damage  for 
which  the  father  may  recover  although  the  latter's  earnings  are 
sufficient  to  keep  the  family  from  becoming  dependent.40 

§  450.  Sales  to  minors — action  by  mother. 

Where  a  husband  and  wife  are  divorced  and  the  son  is  living 
with  the  mother  it  has  been  decided  that  the  niotln  r  is  entitled  to 
recover  though  the  proof  may  be  slight  as  to  the  amount  con- 
tributed by  the  son  to  her  support.50  And  in  West  Virginia  it 
has  been  decided  that  a  mother  who  is  injured  in  her  means  of 
support  bv  reason  of  unlawful  sales  of  liquor  to  hei 
cover  in  an  action  brought  by  her  though  her  husband  who  is  the 


-»».  Liebler    v.    Carroll.    155    Mich.  App.    1908),    107   S.   W.   132,  holding 

196,  118  X.  W.  975.  i    that   wife  should   be   joined    in- 

45.  Theisen  v.  Johns,  72  Mich.  285,  suffici 

40  N.  VY.  727,  citing  Steele  v.  Thomp-  48.  Fitzgerald  v.  Donoher,  48  Neb. 

son,  42  Mich.  596,   I  V  W.  536.  852,  67  X.  \Y.  880. 

46.  Murphy      v.       Willow      Springs  *'■*■   Heath   v.   Stale.  e\  rel.  Johnson. 

Brewing  Co.,  si   \eh.  219,  11".  X.  W.  16  [nd.  App.  146,  44  X.  K.  808. 

763.  BO.  Lossman    v.    Knights,    77    111 

47.  Price  v.   Wakeham    (Tex.   Civ.  App.  670. 


512  CIVIL    DAMAGE    ACTS.  [§   451 

father  of  such  son  may  be  living.51  "Where  by  statute  a  right  of 
action  is  given  to  a  parent,  a  mother  may  recover  without  show- 
ing that  the  child  had  no  father,  as  this  is  not  essential  the  action 
being  given  to  a  parent.52  And  in  an  action  by  a  mother  to  re- 
cover for  a  sale  to  a  minor  son  evidence  of  the  habits  of  her  hus- 
band or  that  he  rented  a  building  for  saloon  purposes  and  was  a 
surety  upon  a  liquor  dealer's  bond  is  immaterial.53  And  in  an 
action  by  a  mother  for  furnishing  liquors  to  her  minor  son  if  the 
defense  desires  to  show,  in  mitigation  of  damages  for  injuries  to 
plaintiff's  feelings,  that  her  purpose  in  bringing  the  suit  was  to 
harass  defendant  and  aid  his  competitors  he  should  directly  tender 
the  issue  by  testimony  tending  to  connect  her  with  such  motive.54 
But  a  mother  suing  for  the  death  of  her  son  is  held  not  entitled  to 
show  that  her  husband  paid  the  doctor's  bills  and  funeral  expenses 
of  decedent  occasioned  by  his  injury.55 

§  451.  Sales  to  minors — consent  of  parent  as  bar. 

In  an  action  by  a  father  if  it  appears  that  he  has  consented  to 
and  acquiesced  in  the  sale  of  liquor  to  a  minor  son,  such  conduct 
on  his  part  may  in  connection  with  other  circumstances  be  a  bar 
to  an  action  by  him.56  And  where  in  an  action  by  parents  to 
recover  damages  for  the  death  of  their  son  resulting  from  his  in- 
toxication, vindictive  damages  are  claimed,  it  is  proper  to  show  that 
on  other  occasions  the  father  had  visited  other  saloons  in  company 
with  his  son  and  had  drank  with  him.57  In  a  suit  by  a  parent 
for  sale  to  a  minor  child  it  may  be  shown  in  mitigation  of 
damages  that  the  plaintiff  had  been  in  the  habit  of  furnishing  the 

51.  McMaster  v.   Dyer,   44   W.   Va.  55.  Hilliker  v.  Farr,  149  Mich.  444, 

644,  2!)  S.   E.  1016.  112  N.  W.  1116. 

r»2.  McNeil  v.  Collinson,  130  Mass.  56.  Price   v.   Wakeham    (Tex.    Civ. 

167.  App.  1908),  107  S.  W.  132. 

53.  Liebler  v.  Carrel,  155  Mich.  196,  57.  Beekerle  v.  Brandon,  229  111. 
118  X.  W.  975.  323,  82  N.  E.  266. 

54.  Liebler  v.  Carrel,  155  Mich.  See  also  Kruger  v.  Spachek,  22  Tex. 
196,   118   N.    VY.   975.  Civ.  App.  307,  54  S.  W.  295. 


§§  452,453]  CIVIL    DAMAGE    ACTS.  ;,!:; 

child  liquor  and  had  done  so  until  he  had  become  intoxicated 
from  its  use.58  Where  liquor  is  sold  to  a  parenl  hut  delivered  to 
a  minor  for  the  parenl  it  is  not  a  sale  to  a  minor  for  which 
i he  parent  may  recover  the  penalty  provided  by  statute.59  Th< 
a  minor  mav  have  authority  from  his  parents  to  purchase  in- 
toxicating liquor  and  at  the  time  of  a  purchase  he  states  that  he  is 
so  buying  and  the  seller  believing  and  relying  thereon  gives  him 
the  liquor  desired  he  is  liable  to  the  parent  for  the  forfeiture 
provided  by  law,  where  such  liquor  was  not  in  fact  for  his  parents. 
And  proof  of  the  emancipation  of  a  minor  or  of  the  wish  of  his 
parents  that  the  sale  should  be  made  is  no  defense  in  a  suit  by  a 
stranger  to  recover  damages  for  injuries  sustained  by  reason  of 
the  intoxication  of  such  minor.00 

§  452.  Sales  to  minors — exemplary  damages. 

In  case  of  an  unlawful  sale  of  liquors  to  a  minor  child  the 
parents  may  recover  exemplary  damages  under  the  Michigan 
statute.61  And  in  this  state  it  is  also  decided  that  exemplary 
damages  may  be  recovered  in  case  of  such  a  sale  though  the  seller 
had  no  knowledge  of  the  minority  of  the  buyer.02  And  a  dis- 
regard of  a  notice  from  a  mother  not  to  sell  any  more  liquor  to 
her  son  will  justify  an  award  of  exemplary  damages.03 

§  453.  Sales  to  habitual  drunkards. 

Where  a  seller  is  by  statute  liable  for  injuries  resulting  from 

58.  Cramer  v.  Danielson.  0!)  Mich.  sired   he   is   liable   to   the   parent   for 

531,  58  N.  W.  476.  tlie  forfeiture  provided  by  law,  where 

."!>.  O'Connell  v.  O'Leary,  145  Mass.  such   liquor  was  not   in   fact   for  his 

311.  14  N.  E.  143.  parents. 

Compare   Commonwealth   v.   Finne-  60.   Flower  v.  Witkovsky,  li'.i  Mich, 

gan,     124    Mass.     324.    holding    thai  371,  37  X.  W.  364. 

though  a  minor  may  have  authority  61.  Weiser  v.  Welch,  112  Mich.  134, 

from  his  parents  to  purchase  intoxi-  To  X'.  \Y. 

eating   liquor    and    at    the   time   of   a  62.  Scahill  v.  Aetna  Indemnity  Co. 

purchase  he  states  that  he  is  so  buy-  (Midi.  1909),  122  X.  \\ .  78. 

ing  and  the  seller  believing  and  rely-  63.  Danley  v.  Eibbard,  222  111.  88, 

ittg  thereon  gives  him  the  liquor  de-  7S  X.  E.  30. 


5U 


CIVIL    DAMAGE    ACTS. 


[§   453 


sales  to  an  habitual  drunkard,  on  the  prosecution  of  an  action  for 
damages  growing  out  of  a  sale  to  such  a  person  the  good  faith 
of  the  seller,  or  his  ignorance  of  the  habits  of  the  buyer  is  im- 
material.64 And  where  in  case  of  sales  to  an  habitual  drunkard  in 
violation  of  statute  it  is  shown  that  the  seller  had  knowledge 
of  such  fact  as  to  the  purchaser  there  may  be  a  recovery  of 
exemplary  damages.65  And  it  is  decided  that  knowledge  on  the 
part  of  a  liquor  dealer  that  a  drunkard  to  whom  he  sells  liquor 
has  a  wife  is  as  much  evidence  of  a  wanton  and  wilful  injury  to 
her  as  if  she  had  actually  forbidden  such  sale.66  In  Michigan  it 
has  been  decided  that  as  a  husband  cannot  continue  an  habitual 
drunkard  unless  liquor  is  furnished  to  him  by  some  one,  a  liquor 
dealer  who  furnishes  such  liquor  or  any  part  thereof  for  gain, 
is,  under  the  statute,  holden  to  the  wife  for  the  money  or  prop- 
erty he  receives  from  the  husband  in  exchange  for  such  liquor.67 
Under  the  excise  law  in  some  states  the  right  of  an  habitual  drunk- 
ard to  recover  for  injuries  resulting  to  or  for  loss  of  his  property 
has  been  recognized.68 


64.  Bistine  v.  Ney  Bros.,  134  Iowa 
172,  111  N.  W.  422. 

Not  necessary  to  prove  knowl- 
edge.— Where  the  evidence  shows  that 
the  husband  is  and  was  during  the 
period  when  the  sales  were  com- 
plained of  a  habitual  drunkard  it  is 
unnecessary  to  prove  that  the  de- 
fondant  had  knowledge  of  that  fact. 
Radley  v.  Seider,  99  Mich.  431,  58 
N.  W.  366. 

■What  constitutes  a  person  an 
habitual  drunkard.— In  a  case  in 
Iowa  the  following  instruction  to  the 
jury  was  held  not  erroneous :  "  If  the 
jury  shall  find  from  the  evidence  in 
the  case  that  during  the  time  alleged 
in  plaintiff's  petition  the  husband  of 
the  plaintiff  had  formed  the  habit 
and  indulged  in  it.  of  drinking  to  ex- 
cess and  becoming  intoxicated  whether 


daily  and  continuously  or  periodically 
with  sober  intervals  of  a  greater  or 
less  length,  the  person  addicted  to 
such  habits  is  an  intemperate  man, 
an  habitual  drunkard."  Miller  v. 
Gleason,  18  Ohio  C.  C.  374. 

Want  of  consent  by  purchaser  to 
purchase  by  reason  of  want  of  capac- 
ity, owing  to  being  an  habitual 
drunkard.  Pleading  of,  see  Bissell  v. 
Starzinger,  112  Iowa  266,  83  N.  W. 
1065. 

65.  Earp  v.  Lilly,  217  111.  582,  75 
N.  E.  552. 

66.  Johnson  v.  Schultz,  74  Mich. 
75,  41  N.  W.  8G5. 

67.  Rouse  v.  Melsheimer,  82  Mich. 
172,  46  N.  W.  372. 

68.  Kilburn  v.  Coe,  48  How.  Proe. 
(N.  Y.)    144. 


CIVIL    DAMAGE    ACTS. 


5 1 5 


§  454] 

§  454.  Sales  to  intoxicated  persons. 

ruder  ;i  statute  giving  a  righl   of  action  to  recover  daj 
where  liquor  is  sold  to  a  person  while  intoxicated,  allegation 
proof  of  knowledge  of  such  intoxication  on  the  part  of  the  Belli  r 
have  been  held  unnecessary.69     And  exemplary  damages  are  n 
erable  for  injuries  resulting  from  sales  made  to  a  person  when  he 
is  intoxicated  and  with  knowledge  that  he  has  been  in  the  habil 
of  becoming  so.7"      And   where  the  sale  of  liquor  is  unlawful  as 
where  it  is  sold  to  an  intoxicated  person  in  violation  of  law,  a  case 
arises  in  which  the  jury  may  assess  exemplary  damages.71     So  it 
is  not  error  in  an  action  by  a  wife  for  the  court  to  read  to  the  jury 
a  statute   prohibiting  the  sale   of  intoxicating  liquor  to   an   in- 
toxicated person  or  to  an  habitual  drunkard  as  it  is  admissible 


09.  Greener  v.  Nielhans  (Tnd.  A.  C. 
1909),  89  N.  E.  377;  Berkeheimer  v. 
State  (Ind.  A.  C.  1909),  88  N.  E.  634. 

As  to  who  is  an  intoxicated 
person  within  the  meaning  of  a  civil 
damage  statute  in  reference  to  sales 
to  such  a  person  it  was  held  proper 
to  charge  the  jury  as  follows:  "  When 
it  is  apparent  that  a  person  is  under 
the  influence  of  liquor,  or  when  his 
manner  is  unusual  or  abnormal,  and 
his  inebriated  condition  is  reflected  in 
his  walk  or  conversation,  when  his 
ordinary  judgment  and  common  sense 
are  disturbed,  or  his  usual  will  power 
is  temporarily  suspended,  when  these 
or  similar  symptoms  result  from  the 
use  of  liquors,  and  are  manifest,  then, 
within  the  meaning  of  the  statute,  the 
person  is  intoxicated  and  any  one 
who  makes  a  Bale  of  liquor  to  such 
person  violates  the  law  of  the  state. 
It  is  not  necessary  that  the  person 
should  be  so  called  '  dead  drunk  '  or 
hopelessly  intoxicated;  it  is  enough 
thai  his  senses  are  obviously  de- 
stroyed or  distracted  by  the  use  of 
intoxicating  liquors."  Lafler  v. 
Fisher,  L21  Mich.  60,  79  N.  W.  934. 


Knowledge  of  intoxication 
presumed. — In  a  suit  by  a  wife  to 
recover  damages  alleged  to  have  been 
sustained  by  reason  of  the  sale  of 
liquor  to  her  husband  when  intoxi- 
cated, it  is  not  necessary  to  allege 
that  the  saloon  keeper  knew  that  he 
was  intoxicated,  that  fac  tbeing  pre- 
sumed from  the  very  nature  of  the 
case.  Fletcher  v.  Forler,  83  Mich.  52. 
40  N.  W.  1023,  10  L.  R.  A.  80. 

The  right  of  a  wife  to  recover 
against  those  who  have  caused  or  con- 
tributed to  the  intoxication  is  un- 
der some  statutes  regarded  as  an  ab- 
solute one  in  no  way  predicated  upon 
knowledge  on  the  part  of  the  seller 
that  the  husband  was  a  person  in  the 
habit  of  becoming  intoxicated.  Me- 
diation v.  Dumas,  96  Mich.  467,  56 
X.  W.  13. 

Sufficiency  of  pleading. — Sale  to 
intoxicated  person.  Action  by  wife. 
See  also  Greener  v.  Nielhans  (Ind.  A. 
c.  1909),  89  X.  E.  377. 

70.  Weitz  v.  Ewen,  50  Iowa  34. 

n.  Betting  v.  Eobbett,  142  111.  72, 
30  N.  E.  1048. 


516  CIVIL    DAMAGE    ACTS.  [§    454 

as  a  ground  for  exemplary  damages.72  And  under  a  statute  in 
Michigan,  where  liquor  was  sold  to  a  person  while  he  was  in- 
toxicated and  his  death  was  caused  by  such  intoxication,  such  dam- 
ages were  held  to  be  recoverable.73  And  in  a  recent  case  in  this 
state  it  is  decided  that  where  liquor  was  sold  to  a  person  known 
to  be  intoxicated,  the  jury  may  find  that  such  sale  was  wanton, 
and  may  award  exemplary  damages,  although  the  saloon  keeper 
did  not  know  the  person  had  a  wife  and  could  not  anticipate 
the  particular  injury  suffered  by  reason  of  the  sale  complained 
of.74 

72.  Johnson   v.   Sehultz,   74   Mich.       79  N.  W.  934. 

75,  41  N.  W.  865.  74.  Manzer  v.  Phillips,   139  Mich. 

73.  Laler  v.  Fisher,   121  Mich.  60 


CIVIL    DAMAGE    ACTS.  517 


CHAPTER  XIX. 

CIVIL  DAMAGE  ACTS— Continued. 

Section  455.  Who  may  bring  action  generally. 

45G.  Against  whom  action  may  be  brought  generally. 

457.  Complaint  or  declaration. 

458.  Evidence  generally. 

459.  Evidence — proof  by  plaintiff — preponderance  sufficient. 
4G0.  Evidence — facts  established  by  circumstances. 

4C1.  Evidence  generally  showing  sale. 

462.  Evidence — life  tables. 

463.  Injury  to  the  feelings — mental  anguish — disgrace. 

464.  Medical  attendance  as  element  of  damages. 

465.  Exemplary  damages  generally. 

466.  Exemplary  damages — statutes  as  to. 

467.  Exemplary  damages — ground  for  awarding — right  to. 

468.  Exemplary   da  mages — no  breach  of  peace. 

469.  Excessive  damages. 

470.  Injury  to  person  or  property  generally. 

471.  Statute  as  to  allowance  for  taking  care  of  person. 

472.  Means  of  support — where  legal  obligation. 

473.  Injury  to  means  of  support  generally — action  by  wife. 

474.  Means  of  support — right  of  action  generally — defenses. 

47.").  Means  of  support — income  of  wife  or  ability  to  labor  immaterial. 

176.   Means  of  support — ad  ion  by  wife — effect  of  divorce. 

477.  Means  of  support — action  by  wife — pleading. 

178.  Means   of   support — action   by   wife — evidence  of   earnings   and 

financial  condition. 
47ii.  Means  of  support — action  by  wife — evidence  as  to  prior  conduct. 
480.  Action  by  wife  -evidence  as  to  age  and  number  of  children. 
4^1.  Means    of    support — action    by    wife — measure    of    damages — 

e\  idence. 

482.  Action   by   wife — physical   suffering — threats — abusive   language. 

483.  Action  by  wife — assault  by  husband. 

484.  Action  by  wife — injury  to  property. 


518  CIVIL    DAMAGE    ACTS.  [§§   455,456 

Section  485.  Action  by  wife — consent  or  acquiescence  of. 

486.  Action  by  wife — consent  or  acquiescence  of  continued. 

487.  Action  by  widow — death  of  husband. 

488.  Action  by  widow — death  of  husband  continued. 

489.  Action  by  widow — husband  killed  by  intoxicated  person. 

490.  Action  by  wife — exemplary  damages. 

491.  Means  of  support  of  mother — sale  to  son. 

492.  Action  by  mother  in  behalf  of  her  and  children — joint  action. 

493.  Means  of  support — action  by  children. 

494.  Action  by  husband. 

495.  Death  of  intoxicated  person — no  recovery  by  personal  represent- 

atives. 
49G.  Action  by  intoxicated  person. 
497.  Assault  by  intoxicated  person. 

Sec.  455.  Who  may  bring  action  generally. 

ISTo  action  can  be  maintained  under  these  statutes  except  by 
the  person  named  in  the  statute,1  and  the  cause  of  action  is  not 
assignable.2  And  an  action  for  damages  resulting  from  the  liquor 
traffic  should  be  brought  by  the  person  entitled  to  such  damages 
though  the  party  to  whom  the  liquor  was  sold  or  who  caused  the 
injury  died  before  the  action  was  brought.3  The  sellor  of  liquor 
being  made  jointly  liable  with  the  intoxicated  person  for  any 
wrong  committed  by  him  cannot  recover  damages  against  the 
latter  for  entering  his  place  and  behaving  in  a  disorderly  manner 
whilo  intoxicated.4 

§  456.  Against  whom  action  may  be  brought — generally. 

The  action  lies  against  the  one  selling  the  liquor  to  the  in- 
toxicated person  and  not  against  the  one  from  whom  such  seller 
purchased  it.5     It  may  be  against  the  vendor  personally  or  on 


61,  102  N.  W.  292.  ing  Co.,  81  Neb.  219,  115  N.  W.  761, 

1.  Kennedy     v.     Garrigan     (S.     D.  703. 

1909),  121  N.  W.  783.  4.  Aldrich    v.    Harvey,    50   Vt.    162, 

2.  McGee  v.  McCann,  69  Me.  79.  28  Am.  Hop.  501. 

3.  Murphy  v.  Willow  Springs  Brew-  5.  Bush  v.  Murray,  66  Me.  472. 


§  456] 


CIVIL    DA.MA<;l.     A(   1> 


.1!) 


his  bond,  where  the  statute  so  permits.0  And  where  by  statute 
the  principal    and   surety  are  jointly  ai  rally   liable   upon 

the  bond,  it  is  decided  that  an  action  against  the  surety  alone 
may  be  brought  for  damages  sustained."  In  some  states  tin- 
sellers  and  the  sureties  upon  their  bonds  may  be  joined.8  So 
under  the  Indiana  statute  the  injured  party  has  a  cause  of  action 
on  the  liquor  dealer's  bond  and  it  is  not  necessary  to  first  exhausl 
the  principal,  but  the  liability  may  be  enforced  in  the  first  in- 
stance against  the  principal  sureties.9  And  in  Michigan  the 
action  may  likewise  be  brought  in  the  first  instance  against  the 
principal  and  sureties  jointly.1"  And  all  who  contribute  to  the  in- 
jury complained  of  may  be  joined  or  any  one  may  be  sued.11 
Again  while  both  the  landlord  and  seller  may  be  joined  in  the  same 
action,12  yet  one  action  may  also  be  brought  against  the  saloon 
keeper  and  prosecuted  to  judgment  and  another  action  against  the 
landlord  to  make  the  judgment  a  lien  upon  his  premises.13  In 
an  action  against  the  seller  of  liquor  to  recover  for  damages 
caused  by  an  assault  upon  the  plaintiff  by  an  intoxicated  person 
it  is  not  necessary  to  make  the  latter  a  party  defendant.14 


<*•  Mulcahey  v.  Givens,  115  Ind. 
286,.  17  N.  E.  598. 

7.  Scahill  v.  Aetna  Indemnity  Co. 
(Mich   L909),  122  X.  \V.  78. 

s-  Eorst  v.  Lewis.  71  X'eb.  365, 
370,  98  X.  W.  1046,  L03  X.  \Y.  460. 

:»•  Brandt  v.  State,  17  Ind.  App. 
311,  46  N.  E.  682. 

10.  Anthony  v.  Krey,  70  Mich. 
629,  38  X.  W.  603. 

n.  Coleman  v.  People,  7s  ill.  App. 
210;  Fountain  v.  Draper,  4!>  Ind.  441  ; 
Jones  v.  Bates,  26  Neb.  693,  42  X.  W. 
751,  4  L.  R.  A.  495;  Wardell  v.  M<- 
Connell,  23  Neb.   152,  36  X.  W.  278. 

See  8  439  herein  as  to  joint  lia- 
bility. 

In  New  York  it  lias  been  held  that 
each   party  being   liable   for   his   own 


acts  in  selling  liquors,  where  liq- 
uor contributing  to  the  intoxication 
has  been  bought  at  different  places, 
it  is  not  proper  to  join  the  different 
sellers  as  defendants  in  the  same  ac- 
tion. Jackson  v.  Brookins,  5  Hun 
iX.  Y.)  530.  See  Morenus  v.  Craw- 
ford, 15  Hun   (X.  Y.)   45. 

is.  Cox  v.  Newkirk,  73  Iowa  42, 
34  X.  W.  492;  Loan  v.  Hiney,  53 
Iowa  89,  1  X.  W.  865;  La  France  v. 
Krayer,   12  [owa   1  13. 

IS.  McVey  v.  Manatt,  80  Iowa  132, 
45  N.  W.  548,  citing  La  France  v. 
Krayer,  42  Iowa  143:  Buckham  v. 
Grape,  65  [owa  035.  17  X.  \Y.  755 
22  X  W.  664. 

14.  English  v.  Beard.  51  Ind.  489. 


520 


CIVIL    DAMAGE    ACTS. 


[§  457 
§  457.  Complaint  or  declaration. 

Where  the  statute  does  not  specify  the  form  of  remedy  a 
common  law  declaration  is  good  under  the  civil  damage  law.15 
The  complaint  should  contain  such  allegations  as  are  necessary 
to  constitute  a  cause  of  action  within  the  terms  of  the  statute.16 
So  the  pleadings  should  allege  the  intoxication  of  the  person 
by  whom  the  injury  has  been  caused,17  and  should  aver  that  the 
damages  sustained  resulted  in  consequence  of  a  sale  of  intoxicating 
liquors.18  An  allegation,  however,  of  the  kind  of  liquor  sold  is  not 
necessary,19  and  an  averment  of  the  sale  of  "  spirituous  and  in- 


15.  Kehrig  v.  Peters,  41  Mich.  475, 
2  N.  W.  801. 

16.  Struble  v.  Nodwift,  11  Ind.  64; 
Westbrook  v.  Miller,  98  App.  Div. 
(N.  Y.)   590,  90  N.  Y.  Supp.  558. 

An  allegation  that  "  while  in  a 
state  of  intoxication  so  that  he  was 
incapable  of  knowing  what  he  was 
about  or  taking  care  of  himself  he 
fell  "  held  not  equivalent  to  an  alle- 
gation that  "  in  consequence  of  the 
intoxication "  he  fell.  Schwann  v. 
Osborn,   59   Ind.   245. 

Sufficiency  of  petition  generally 
see  King  v.  Haley,  86  111.  106,  29  Am. 
Rep.  14;  Smiser  v.  State,  17  Ind. 
App.  519,  47  N.  E.  229;  Roberts  v. 
Taylor,  19  Neb.  184,  27  N.  W.  87. 

Sufficiency  of  declaration  in 
action  by  mother  for  loss  of  means 
of  support  by  death  of  son,  see  Eddy 
v.  Courtright,  91  Mich.  264,  51  N.  W. 
887. 

Sufficiency  of  declaration  in 
action  to  recover  for  taking  care 
of  injured  person,  sec  McVey  v. 
Williams,   91    111.  App.   144. 

Sufficiency  of  declaration  in 
action  by  wife  for  loss  of  sup- 
port by  furnishing  of  liquor  to  her 
husband.  See  Fletcher  v.  Forler,  83 
Mich.  52,  46  N.  W.  1023,  10  L.  R.  A. 
80. 


Complaint  for  causing  deatb 
of  husband  held  defective,  see  Scha- 
fer  v.  State,  49  Ind.  460. 

A  misjoinder  of  counts  in  tort 
and  assumpsit  may  be  cured  by  a 
statute  so  permitting.  Schafer  v. 
Boyce,  41  Mich.  256,  2  N.  W.  1. 

There  is  a  misjoinder  where  a  wife 
sues  for  loss  or  injury  to  her  in  one 
count  and  in  another  count  sues  as  a 
citizen  and  an  informer  for  the  for- 
feit provided  by  law.  Carter  v. 
Bernstein  Bros.,  104  Iowa  572,  73  N. 
W.   1076. 

Amendment  of  complaints. — 
See  Brandt  v.  State,  17  Ind.  App.  311, 
46  N.  E.  682 ;  Chase  v.  Kenniston,  76 
Me.  209;  Wright  v.  Treat,  83  Mich. 
110,  47  N.  W.  243. 

A  complaint  should  not  be 
dismissed  on  the  ground  that  no 
right  of  action  can  exist  against  the 
vendor  of  liquors  except  in  cases 
where  it  would  also  lie  against  the 
intoxicated  person.  Quain  v.  Russell, 
8  Hun    (N.  Y.)    319. 

17.  McEntee  v.  Spiehler,  12  Daly 
(X.  Y.)   435. 

18.  Schafer  v.  State,  49  Ind.  460. 

19.  Walser  v.  Kerrigan,  56  Ind. 
301;  Edwards  v.  Brown,  67  Mo.  377. 


§§458,459]  CIVIL    DAMAGE    ACTS.  521 

toxicating  liquors  to  wit  whisky  "  to  a  minor  does  not  confine  the 
plaintiff  in  his  proofs  to  thai  particular  intoxicant.20  Again  it 
is  not  error  for  the  court  to  omit  to  submit  to  the  jury  evidence 
in  support  of  ;i  cause  of  action  not  set  forth  in  the  privileges  or 
embraced  within  the  issues.21 

§  458.  Evidence  generally. 

The  cause  of  action  being  one  created  by  statute  it  is  essential 
that  facts  sufficient  to  bring  the  case  within  the  statute  must  be 
proved  in  order  to  render  a  defendant  liable.22  The  burden  rests 
upon  a  plaintiff  to  establish  by  a  fair  preponderance  of  evidence 
every  fact  essential  to  a  recovery.23  So  where  it  is  claimed  that 
a  person  died  as  the  result  of  intoxication  caused  by  liquors  fur- 
nished by  the  defendant  not  only  should  the  sale  of  liquors  to  the 
deceased  be  proved  but  also  his  intoxication  and  the  fact  that  his 
death  was  caused  thereby.24  An  allegation,  however,  in  a  com- 
plaint which  is  not  material  need  not  be  proved.25 

§  459.  Evidence— proof  by  plaintiff— preponderance  sufficient. 

It  is  only  necessary  in  this  class  of  cases,  though  such  acts  are 
often  declared  to  be  highly  penal  in  their  character,  for  the  plain- 
till'  to  establish  his  or  her  case  by  a  preponderance  of  the  evi- 
dence.26 And  in  such  an  action  the  fact  that  the  act  is  also  in- 
dictable as  a  crime,  does  not  render  necessary  a  higher  degree  of 
proof,  a  preponderance  of  evidence  only  being  necessary  to  es- 


20.  Flower  v.  Witkovsky,  69  Midi.  showing  that  he  did  not  contribute  to 
371,  .".T  \.  W.  364.  the  injury  complained  of. 

21.  Andresen  v.  .Tetter.  76  Neb.  520,  21.  Baker  \.  Summers,  201  111.  52, 
107  N.  W.  789.  66  X.  E.  302. 

22.  linker  v.  Summers,  201    [11.  52,  -•">•  Schroder    v.    Crawford,    94    111. 
66  N.  E.  302;  Borgason  v.  Eklund,  96  357,  34  Am.  Rep.  236. 

111.  App.  443.  -°-  Chase    v.    Kenniston,    70    Me. 

23.  Macl 1  v.  Geyer,  53  [owa  615,  209;    Kolling  v.  Bennett,  is  Ohio  C. 

6   N.    W.   21,   holding   thai    proof   of  O.  425;    Stanton  v.   Simpson.  4S   Vt. 

sales  by  the  defendant    did   not   of  it-  028. 

self  throw  upon   him   the  burden   of 


£22  CIVIL    DAMAGE    ACTS.  [§   460 

tablish  a  cause  of  action.27  So  it  is  said  in  a  case  in  which  this 
question  arose,  a  case  which  was  an  action  to  recover  a  forfeiture : 
"It  is  true  that  this  action,  like  all  penal  actions,  partakes  some- 
what of  the  character  of  punishment,  but  this  does  not  make  it  a 
criminal  prosecution.  When  the  legislature  gives  to  the  plaintiff 
a  civil  action,  partly  remedial  in  its  nature,  it  is  to  be  presumed 
that  it  is  intended  that  the  usual  incidents  of  all  civil  actions 
should  attach,  one  of  which  is  that  proof  by  a  reasonable  prepon- 
derance of  the  evidence  is  sufficient."  28  So  it  is  not  necessary, 
in  an  action  for  injury  to  means  of  support  that  the  evidence 
should  exclude  all  reasonable  doubt  but  a  preponderance  of  evi- 
dence is  sufficient  to  justify  a  recovery,  the  action  being  one  to 
recover  damages  and  not  a  fine  or  penalty.29 

§  460.  Evidence— facts  established  by  circumstances. 

The  sale  of  intoxicating  liquors  as  well  as  injury  or  accident 
claimed  as  the  result  of  such  sale  may  be  established  by  circum- 
stances.30    The  fact  of  itself,  however,  that  a  person  is  seen  to 

27.  Welch  v.  Jugenheimer,  56  Iowa      lowing  instruction  not  erroneous.    "  If 

II,  8  N.  W.  G73,  41  Am.  Rep.  77.  you  shall  find  from  the  evidence  that 

28.  Roberge  v.  Burnham,  124  Mass.       the  deceased  went  into  the  saloon  of 
277.     Per  Morton,  J.  the  defendant  and  that  the  business 

2J>.  Woods   v.   Dailey,   211    111   495,  of  the   defendant  was  to   sell   intoxi- 

71  X.  E.  1068,  citing  Hall  v.  Barnes,  eating  liquors,  and  that  deceased  was 

82  111.  228 ;   Robinson  v.  Randall,  82  sober  when  he  went  into  the  saloon, 

III.  521  ;  Crabtree  v.  Reed.  50  111.  200;  and  that  he  came  out  of  the  saloon 
Nutter  v.  Balthasser,  78  111.  302;  intoxicated,  these  facts  raise  a  pre- 
Mitchell  v.  Hindman,  150  111.  538,  37  sumption  that  such  person  obtained 
X.  E.  916;  Taylor  v.  Felsing,  164  111.  intoxicating  liquor  in  such  saloon,  but 
331,  46  X.   E.   161.  such  presumption  may  be  overcome  by 

30.  Hall  v.  Barnes,  82  Til  228;  Sul-  the  proofs  and  circumstances,  and   if 

livan  v.  Radzuweit,  82  Neb.  657,  118  you  shall  find  from  the  evidence  that 

X.  W.  571;    McManigal  v.  Seaton,  23  the   deceased   did   not   procure   liquor 

Neb.   549,   37  X.  W.  271  ;   McDougall  from  the  defendant  that  caused   him 

v.  Giacomini,  13  Neb.  431,  14  N.  W.  to  be  intoxicated  or  that  contributed 

150.  thereto,   you   should  find   for  the   de- 

The  circumstances  may  be  such  fendant." 
as   to   raise   a  presumption   of   a  But   where  the  evidence  of  sale   is 

sale.— Curran    v.    Percival,    21    Neb.  circumstantial  and  is  contradicted  by 

434,   32   N.   W.   213,  holding  the  fol-  positive   evidence,   the   question   of   a 


§   4G1]  CIVIL    DAMAGE    ACTS.  -•_.;; 

come  out  of  a  saloon  intoxicated  does  not  raise  any  presumption 
as  to  a  sale  of  liquor  having  been  made  to  him  in  thai  place  as  he 
may  have  entered  the  place  intoxicated  and  the  proprietor  or  his 
agent  have  refused  to  sell  him.81  But  if  a  person  wen-  seen  to 
enter  a  saloon  in  a  sober  condition,  to  have  remained  there  for 
some  time  and  then  to  have  lefl  in  an  intoxicated  condition,  the 
circumstances  would  be  such  as  to  justify  an  inference  of  sales 
to  him  while  there.  And  the  circumstances  may  be  such  that  the 
owner  may  be  charged  with  notice  of  the  unlawful  sales  taking 
place  upon  the  premises.32  And  where  a  person  is  accidentally 
injured  while  intoxicated,  though  there  is  no  direct  evidence  as 
to  how  the  injury  occurred,  the  circumstances  may  he  such  that  it 
will  be  inferred  that  the  accident  was  due  to  his  intoxicated  con- 
dition.33 Again  it  is  not  required  that  the  evidence  shall  be  clear, 
positive  and  specific  as  to  the  time,  place,  manner,  and  each  item 
of  loss  to  authorize  the  jury  to  find  injury  to  the  support  of  the 
family,  but  that  fact  may  be  proved,  like  any  other,  by  circum- 
stances.34 

§  461.  Evidence  generally  showing  sale. 

In  an  action  under  a  civil  damage  act  it  is  improper  to  admit 
evidence  of  sales  of  liquor  prior  to  the  passage  of  the  act.1'""'  And 
in  an  action  for  an  unlawful  sale  of  liquors  it  i.s  error  to  allow 
proof  of  other  unlawful  sales  to  other  persons  on  tin  day  in 
question.86     And  declarations  made  by  a  person  subsequent  to  an 

sale    is    for    the    jury    to    determine.  :::{-  Colburn   v.   Spencer,   177  Mass. 

Hanewacker  v.  Ferman,  47  111.  App.       47:5.  59  \.   I 

17.  84.   Horn  v.  Smith.  77  111.  381. 

Sufficiency   of   evidence   tending  85'   Duboia  v'  Miller'  5  Hun   '  X-  Y) 

to  show  unlawful  sales.     McQuade  v.  :"~-  holdin8  1hat  an  error  in  admit" 

Hani,.  65  Vt  482,  27  Atl.  136.  ,u"-  3uch  evidenee  ™*  ""'   cured  hy 

_„    _       ,               _  .                  ,,.  an  instruction  to  the   jury  that   they 

31.  Lovelan     v.     Briggs,     32     Ilun  .,       ,    ,.    ,            .    '     ' 

,,„  „       __  could  net   luiil  any  damages  for  any- 

X.  Y.)   4/7.  ...       ,,    ,  '         .  .. 

thing  that  occurred  prior  to  t he  pass- 

32.  Johnson     v.     Grimminger,     S3      .,,,,,  ,,,-  ,),,,  .,,.( 

Iowa    10.   -is    X.    W.    1052;    Loan   v.  86.  Hilliker  v.  Fair,  149  Mich.  444, 

Etzell,  (i-J  Iowa  429,  17  X.  \\ .  Oil.  Ill  X.  W.  1116. 


524  CIVIL    DAMAGE    ACTS.  [§   452 

injury  received  by  him  while  in  an  intoxicated  condition  as  to 
where  he  obtained  the  liquor  are  not  admissible.37  Again  in  an 
action  by  a  wife  for  having  furnished  her  husband  liquor  oc- 
casioning his  intoxication  and  consequent  death,  the  defendant 
cannot  show  that  he  knew  the  intemperate  habits  of  the  deceased 
and  had  on  previous  occasions  refused  him  liquor,  as  tending  to 
prove  that  he  did  not  furnish  it  upon  the  occasion  in  question.38 
But  proof  of  the  fact  of  the  sales  may  be  shown  by  conversations 
between  the  wife  and  her  daughter  and  the  defendant.39  And  in 
an  action  by  a  married  woman  against  a  saloon  keeper  for  damages 
on  account  of  the  sale  of  intoxicating  liquors  to  her  husband,  proof 
of  having  furnished  liquors  to  her  husband  upon  the  order  and 
promise  of  payment  by  a  third  person  is  sufficient  to  sustain  the 
action.40 

§  462.  Evidence — life  tables. 

Where  an  injury  to  the  means  of  support  is  claimed  as  the 
result  of  the  death  of  another  life  tables  are  properly  admissible 
upon  the  question  of  the  expectancy  of  life  in  order  to  arrive  at 
a  proper  estimate  of  damages  for  such  injury.41  So  evidence 
may  be  admitted  of  the  life  expectancy  of  the  husband  and  of  his 
ability  during  such  period  to  support  his  wife  in  an  action  by 
her  for  loss  of  support  resulting  from  his  death.42  And  likewise 
in  an  action  by  a  minor  for  loss  of  support  caused  by  the  death 


37.  Richards  v.  Moore,  62  Vt.  217,  Michigan. — Merrinane      v.      Miller, 
lit  Atl.   390.  148  Mich.  412,  111  N.  W.  1050. 

38.  Richards  v.  Moore,  62  Vt.  217,  Nebraska. — Horst  v.  Lewis,  71  Neb. 
19  Atl.  390.  370,  98  N.  W.  1046,  103  N.  W.  460; 

•'«>.  Radley  v.  Seider,  99  Mich.  431,  Sellars    v.    Foster,    27    Neb.    118,    42 

58   NT.  W.  366.  N.  W.  907. 

40.  Judge  v.  Jordan,  81  Iowa  519,  New  York. — Davis  v.   Standish,  26 
40  N.  W.    1077.  Hun  608. 

41.  Indiana. — Smiser   v.    State,   17  42.  Brockway     v.      Patterson,      72 
Ind.  App.  519,  47  N.  E.  229.  Mich.   122,  40  N.  W.  192,  1  L.  R.  A. 

Iowa.— Peterson  v.  Broekey  (1909),  708. 
119   X.   W.   967. 


§  4G3]  CIVIL    DAMAGE    ACTS.  525 

of  the  father  such  tables  may  be  admissible,4''  though  not  m 
sarily  as  the  absolute  criterion  for  determining  the  period  for  which 
such  loss  was  to  be  estimated  but  as  an  aid  to  ascertain  whether 
the  period  of  expectancy  would  be  equal  to  the  period  of  minority 
when  the  parent  would  be  obligated  to  support  the  miner.  Such 
tables  are  not  conclusive  upon  the  question  of  the  continuance  of 
life  but  are  given  to  the  jury  merely  as  aid."  And  they  may  be 
considered  by  the  jury  in  connection  with  evidence  as  to  the 
physical  condition  of  the  deceased,  his  vocation  and  habits.45 

§  463.  Injury  to  the  feelings — mental  anguish — disgrace. 

Injury  to  the  feelings  and  the  disgrace  which  a  wife  may 
suffer  in  consequence  of  the  intoxication  of  her  husband  is 
in  some  jurisdictions  an  element  to  be  considered  in  award- 
ing exemplary  damages.46  But  injury  to  the  feelings,  no 
injury  to  the  health  or  physically  being  shown,  is  not  an  in- 
jury to  the  "  person "  within  the  meaning  of  a  civil  damage 
statute.47  And  in  order  to  recover  for  an  injury  to  the  "  person  " 
of  the  plaintiff  there  must  be  either  an  assault,  or  some  actual 
violence  or  some  physical  injury  to  the  person  or  health,  and 
mere  mental  anguish,  disgrace  or  a  loss  of  society  or  companion- 
ship is  not  sufficient.48  If  the  action  is  for  injury  to  the  means 
of  support,  mental  pain  or  anguish  is  not  an  element  to  be  con- 
sidered in  estimating  the  damages.49     So  in  an  action  by  a  wife 

43.  Peterson     v.     Brockey      (Iowa  48.  Mulford  v.  Clewell,  21  Ohio  St. 

1909),  119  X.  W.  967.  191. 

»»•  Merrinane  v.  Miller,  148  Mich.  40.    Brautigam   v.    While,    73    111. 

412.   Ill   X.  W.   1050.  56  1  :    Meidel   v.   Antihs,   71    111.   211; 

45.  Peterson  v.  Broekey  (Iowa  Koerner  v.  Oberly,  56  [nd.  284.  Com- 
1909),  119  X.  \V.  967.  See  also  pare  Johnson  v.  Schultz,  74  Mich.  7.'), 
Acken  v.  Tinglehoff  (Neb.  1909),  119  II    \.  \V.  8G5. 

N.  W.  450;    Davis  v.   Borland    (Neb.  In     one    of    the    earlier    eases     in 

1909),   119  X.  YV.  454.  Illinois  it  is  declared  that  where  the 

46.  Ford  v.  Cheever,  1<i~>  Mich.  G79,  Btatute  contemplates  a  recovery  for 
63  X.  W.  975.  injury    sustained    by   tin'   wife   in    per- 

47.  Calloway  v.  Lay. Ion,  47  Iowa  sou.  property  or  means  of  support, 
45G,  29  Am.  Rep.  489.  mental    pain    is    not    an    element    of 


5o6  CIVIL    DAMAGE    ACTS.  [§   463 

damages  are  not  recoverable  for  her  wounded  feelings  or  disgrace 
and  evidence  to  show  her  loss  of  social  standing  by  reason  of  her 
husband's  habits  is  inadmissible.50  In  some  jurisdictions,  how- 
ever, a  wife  who  has  sustained  injury  to  her  person  by  reason  of 
her  husband  becoming  intoxicated  may  also  recover  for  mental 
suffering  resulting  therefrom.51  So  under  a  statute  permitting 
a  recovery  by  a  wife  who  has  been  injured  in  person  and  prop- 
t  it \\  it  has  been  decided  that  a  wife  who  has  been  driven  by 
abusive  language,  threatening  and  intimidation  from  her  home 
by  an  intoxicated  husband  sustains  such  physical  injury  and  suf- 
fering as  will  sustain  action  under  the  statute  though  no  actual 
violence  is  used,  and  that  as  a  part  of  her  actual  damages  she  may 
recover  for  injury  to  her  feelings  and  the  indignity  suffered.52 
And  the  words  "  or  otherwise  "  in  a  statute  allowing  a  wife  to 
recover  damages  have  been  held  broad  enough  to  cover  injuries 
to  her  feelings  and  to  permit  the  recovery  of  damages  for  mental 
suffering  caused  by  the  disgrace  and  discomfort  attendant  upon 
the  drunken  condition  of  her  husband.53  In  this  connection  it  is 
decided  that  a  newspaper  article  giving  an  account  of  a  saloon 
row  and  of  the  husband's  participation  therein  is  admissible  as 
bearing  upon  the  mental  anguish  of  the  wife.54  And  evidence  of 
the  husband's  conviction  for  drunkenness  is  admissible  as  tending 
to  show  the  extent  and  nature  of  the  injury  suffered  by  the  wife 

damages     to    be     considered     as     the  fortunate    habits    the    plaintiff     suf- 

3tatute   should  be  strictly  construed.  fered  in  her  standing  in  society,  while 

Weidel    v.    Anthis,   71   111.  241.  it  may  have  been  humiliating,  yet  it 

50.  Jackson  v.  Noble,  54  Iowa  641,  could  not  be  made  the  foundation  of 

7  X.  W.  88.     The  court  said:    "This  a    claim    to    enhance    the    damages." 

evidence     was     not     admissible     and  Per  Rathrock,  J. 

i  1      have     been     excluded.       The  51.  Ward    v.    Thompson,    48    Iowa 

plaintiff  in  actions  of  this  character  588;  Lucker  v.  Liske,  111  Mich.  683, 

is   entitled   to   recover   for   injuries  to  70  N.  W.  421. 

her    person,    property    and    means   of  52.  Peterson  v.  Knoble,  35  Wis.  80. 

support.      Damages    are    not    allowed  •'•"»•  Radley  v.  Seider,  99  Mich.  431, 

on    account    of    wounded    feelings    or  58  X.  W.  366. 

disgrace.      Kearney   v.   Fitzgerald,   43  54.  Lucker  v.  Iiske,  111  Mich.  683, 

Iowa   580.     If  by   her   husband's  un-  70  X.  W.  421. 


§§  464,465]  (1VIL    DAMAGE    acts.  527 

to  her  fee-lings.55  But  the  loss  of  the  companionship  of  a  sober 
man,  and  the  shame  and  disgrace  of  having  a  drunken  husband, 
cannol  be  considered  by  the  jury  in  a  suil  by  the  wife  for  damag<  - 
to  h(  r  mean-  of  support  by  the  sale  of  intoxicating  liquors  to  her 
husband,  as  an  element  of  her  actual  damages  where  auch  condi- 
tions existed  long  prior  to  and  at  the  time  of  the  alleged  sales, 
and  the  testimony  fails  to  show  that  the  wife  has  suffered  any 
mortification  or  mental  anguish  on  account  of  the  sale  of  liquor 
to  her  husband  by  the  defendant,  or  any  other  person.68  The 
doctrine  that  there  can  be  no  recovery  for  mental  suffering  is  also 
applicable  in  the  case  of  an  action  by  a  father  to  recover  in  the 
case  of  the  intoxication  of  a  son.57 

§  464.  Medical  attendance  as  element  of  damages. 

Where  a  married  woman  is  given  by  statute  a  right  to  recover 
for  all  damages  sustained  by  herself  and  children  on  account  of 
such  traffic  and  it  appears  that  her  husband  died  as  a  result  of 
the  traffic  she  may  recover  not  only  for  loss  of  means  of  support 
but  also  the  reasonable  expenses  of  medicine  and  medical  at- 
tendance and  funeral  expenses  paid  by  her.58  And  where  liquor 
is  wrongfully  sold  to  a  minor  the  father  in  an  action  to  recover 
for  the  loss  of  his  services  may  also  recover  for  money  expended 
by  him  for  medical  attendance  to  the  son.59  Again  where  the 
plaintiff's  wife  was  injured  as  a  result  of  the  intoxication  of  his 
son-in-law  it  was  held  in  an  action  to  recover  therefor  that  the 
damages  included  expenses  of  medical  service.* 


60 


§  465.  Exemplary  damages  generally. 

Subject  to  the  qualification    that   there   must  be  some   actual 

B5.  Lucker  v.  Liske,  111   Mich.  683,  B8.  Keeling     v.      Pounner      (Neb. 

To   \.   \Y.   421.  1909),  120  X.  W.  155. 

56.  Johnson  v.  Schultz.  74  Mich  7r..  '>'■>■  Volana  v.  Owen,  9  Hun  (X.  Y.I 

41  X.  \V.  865.  558. 

r>7.  Clinton    v.    Laning,    CI     Mich.  ,!°-  Al.lrich   v.   Sager,   9   Hun    (X. 

355,  28  X.  W.  125.  Y.)  537. 


528 


CIVIL    DAMAGE    ACTS. 


[§   4G5 


damage  to  authorize  the  recovery  of  exemplary  damages,61  it  maj 
be  stated  as  a  general  rule  that  where  the  evidence  shows  a  wilful 
or  wanton  violation  of  the  law,  or  reckless  or  illegal  acts  and  con- 
duct in  utter  disregard  of  the  right  of  others  exemplary  damages 
may  be  assessed.62     Exemplary  damages  are  not  the  subject  of 


61.  Bates  v.  Davis,  76  111.  221; 
Brantigam  v.  While,  73  111.  561; 
Confrey  v.  Stark,  73  111.  187;  Al- 
brecht  v.  Walker,  73  111.  69;  Fentz 
v.  Meadows,  72  111.  540;  Kleedy  v. 
Howe,  72  111.  133;  Cxilraore  v. 
Matthews,  67  Me.  517;  Gansley  v. 
Perkins,  30  Mich.  492. 

Where  the  jury  finds  that  no 
damages  were  sustained  by  the 
plaintiff  for  which  the  defendant  is 
liable  the  former  has  no  ground  for 
questioning  the  verdict  on  the  ground 
of  a  claimed  error  in  the  charge  as  to 
exemplary  damages.  Johnson  v.  John- 
son, 145  Mich.  586,  108  N.  W.  1011. 

Evidence  of  threatening  lan- 
guage or  vulgar  conduct,  not  be- 
ing such  as  to  cause  actual  injury,  is 
inadmissible  as  a  ground  of  ex- 
emplary damages.  Calloway  v.  Lay- 
don,  47  Iowa  456,  29  Am.  Rep.  489. 

62.  Kennedy  Bros.  v.  Sullivan,  136 
111.  94,  26  N.  E.  382;  England  v. 
Cox.  89  111.  App.  551  ;  Kellerman  v. 
Arnold,  71  111.  632;  Kreiter  v. 
Nichols,  28  Mich.  496;  Wilber  v. 
Dwyer,  69  Hun  (X.  Y.)  507,  23  N.  Y. 
Supp.  395;  Rawlins  v.  Vidvard,  34 
Hun  (N.  Y.  205;  compare  Roose  v. 
Perkins,  9  Neb.  304,  31  Am.  Rep.  409. 

Evidence  of  the  illegality  of 
the  sales  sufficiently  supplies  the 
elements  necessary  to  an  award  of 
exemplary  damages:  "If  sales  be 
made  illegally,  in  violation  of  the 
express  command  of  the  statute, 
v.  In  ther  made  by  principal  or  agent, 
in  the  eye  of  flic  law.  as  heretofore 
construed,  they  are  deemed  to  have 
been    made    wilfully     and     wantonly. 


The  illegality  thereof,  the  violation 
of  the  law,  by  principal  or  agent 
supplies  all  the  elements  necessary 
in  other  cases  to  show  fraud,  malice, 
oppression,  or  wanton,  wilful  or  reck- 
less conduct,  or  criminal  indifference 
to  civil  obligation,  on  the  part  of  the 
defendant  and  justifies  the  jury  in 
imposing  on  the  wrong-doer,  for  his 
infraction  of  the  law  exemplary  dam- 
ages." Pennington  v.  Gillaspie, 
(W.  Va.  1910),  66  S.  E.  1009.  Per 
Miller,  J. 

Selling  -without  a  license.— 
The  fact  that  a  defendant  was  selling 
liquors  without  a  license  may  be  con- 
sidered as  a  basis  for  exemplary  dam- 
ages. Davis  v.  Standish,  26  Hun 
(N".  Y.)    608. 

It  has  been  held  proper  to  re- 
fuse to  charge  that  "  if  the  jury 
award  the  plaintiff  any  amount  by 
way  of  exemplary  damages,  they 
should  not  consider  the  fact,  if  such 
they  find  it  to  be,  that  certain  of  the 
illegal  sales  were  made  on  Sunday." 
Sibila  v.  Bahney,  34  Ohio  St.  399. 

Jury  not  bound  to  award  ex- 
emplary damages. — Hackett  v. 
Smelsley,  77  111.  109.  But  see  Peter- 
son v.  Brockey  (Iowa  1909),  119 
N.  W.  967. 

That  sale  a  criminal  offense 
immaterial. — The  fact  that  the  sale 
complained  of  was  a  criminal  one 
where  sold  to  a  minor  does  not  re- 
lieve the  defendant  from  his  civil  lia- 
bility. Boos  v.  State,  11  Ind.  App. 
257,   39  N.  E.   197. 

But  in  some  cases  the  doctrine  is 
affirmed  that  where  a  person  may  be 


(  IVIL    DAMAGE    ACTS. 


529 


§  466] 

a  claim  in  the  sense  that  it  is  necessary  to  make  an  avermenl 
thereof  in  the  petition  and  they  may  be  allowed  by  the  jury  in  a 
proper  case   without  such   an   averment.63      And    where   ;•    sum 

allowed  by  a  jury  is  within  the  evidence  of  the  actual  damages 
sustained  it  will  not  be  said  that  exemplary  damages  were 
allowed.04  In  a  clear  case  of  right  to  exemplary  damages  a 
peremptory  instruction  to  that  effect  is  held  to  be  proper.65  Under 
all  circumstances,  however,  the  amount  of  exemplary  damages 
which  a  wife  may  recover  is  in  the  discretion  of  the  jury.66  But 
where  actions  are  brought  by  different  persons  as  a  mother  and 
child,  exemplary  damages  should  not  be  awarded  in  each  action.'" 


§  466.  Exemplary  damages — statutes  as  to. 

By  express  provision  of  the  statute  in  some  states  exemplary 
damages  are  allowed.68     Such  a  statute  simply  allowing  exem- 


punished  criminally  for  the  sale  com- 
plained of  exemplary  damages  cannot 
be  awarded  against  him  in  the  civil 
action  under  the  statute.  Schafer  v. 
Smith,  G3  Ind.  226;  Struble  v.  Nod- 
wift,  11   Ind.  64. 

So  in  an  early  case  in  Indiana  it 
is  decided  that  where  the  statute 
makes  the  same  act  for  which  suit  is 
brought  a  penal  offense  a  provision  of 
law  allowing  exemplary  damages  is 
in  violation  of  a  constitutional  pro- 
vision that  "no  person  shall  be  twice 
put  in  jeopardy  for  the  same  offense." 
Koerner  v.  Oberly,  5G  Ind.  284,  2G 
Am.  Rep.  34. 

And  in  one  of  the  earlier  cases  in 
Illinois  it  is  decided  thai  while  ex- 
emplary damages  may  in  some  cases 
be  awarded  by  way  of  compensation 
they  cannot  In-  awarded  by  way  of 
punishment  for  a  sale  which  is  un- 
lawful ami  for  which  a  punishment  is 
provided  by  statute.  Albrecht  v. 
Walker.  7:!  111.  69.  See  also  Freese  v. 
Tripp.  70  111.  496. 

But  it  is  decided  in  a  later  case  in 


this  state  that  a  wife  may  recover 
both  her  actual  and  also  exemplary 
damages  from  the  seller  though  the 
latter  may  also  be  liable  to  indict- 
ment for  the  same  act  upon  which  tie- 
suit  is  based.  Brannon  v.  Silvernail, 
81  111.  434. 

<;:*•  Gustafson  v.  Wind.  62  fowa 
281,   17   \.  W.  523. 

«*•  Rude  v.  Fakes,  143  111.  App. 
456. 

<>•"•  Merrinane  v.  Miller,  Its  Mich. 
41-2.   Ill   X.  W.  1052. 

Compare  Pennington  v.  Gillaspie 
iW.  Va.  1910),  66  S.  E.  1009  hold- 
ing thai  exemplary  damages  no1  be- 
ing recoverable  as  a  matter  of  righl 
it  is  error  to  instruct  the  jury  that 
they  should  find  exemplary  damages. 

<;<>•  Fox  v.  Wunderlich,  ti4  Iowa 
187,  20  X.  W.  7:  Goodenough  v.  Mc- 
Grew,  44  Iowa  670;  Wightman  v. 
Devore,  33  Wis.  570. 

<;t.  Secor  v.  Taylor.  41  Hun  (N. 
Y.)    123. 

68.  Rude  v.  Fakes.  1  13  111.  App. 
456;    Naughton    v.    Lochiel,    143    111. 


530 


CIVIL    DAMAGE    ACTS. 


[§   467 


plary  damages  and  actual  damages  is  held  to  make  no  change  in 
the  rules  governing  the  recovery  of  exemplary  damages  but  places 
them  upon  the  same  footing  and  subject  to  the  same  rules  of 
evidence  as  other  actionable  torts.09 


§  467.  Exemplary  damages — ground  for  awarding — right  to. 

There  must  be  something  as  a  general  rule  beyond  the  mere 
sale  and  the  resulting  damages  to  warrant  the  granting  of  ex- 
emplary damages.70  Such  damages  are  said  not  to  be  awarded 
as  a  matter  of  right  but  as  a  protection  to  the  public  and  an 
example  to  the  wrongdoer.71  And  they  are  not  recoverable  in 
every  case  where  a  cause  of  action  is  made  out  but  circumstances 
of  abuse  or  aggravation  must  be  shown.73  So  generally  to  en- 
title a  plaintiff  to  an  award  of  exemplary  damages  the  conduct  of 
the  defendant  must  have  been  wanton,  reckless,  malicious  or 
oppressive  or  otherwise  deserving  of  condemnation  beyond  the 
mere  actual  damage.73  In  Iowa,  however,  under  the  code  it 
has  been  determined  that  where  actual  damages  are  shown  there 
may  be  a  recovery  of  exemplary  damages  and  that  wilfulness  and 


App.    402;     Miller    v.    Hammers,    93 
Iowa  746,  61  N.  W.  1087. 

See  also  cases  cited  in  preceeding 
and  following  section. 

69.  Campbell  v.  Harmon,  96  Me.  87, 
51  Atl.  SOI. 

70.  Murphy  v.  Curran,  24  111.  App. 
475. 

71.  Campbell  v.  Harmon,  96  Me. 
87,  51  Atl.  801. 

Not  punitory  in  character. — In 
Michigan  it  has  been  decided  that  ex- 
emplary damages  while  allowable  can 
be  given  only  to  compensate  injury  to 
feelings  caused  by  the  wanton  or  reck- 
less acts  of  the  defendant  and  that  it 
is  error  to  permit  the  jury  to  award 
them  under  an  instruction  that  they 
are  punitory  in  character  and  de- 
signed to  punish  the  defendant  for 
some  positive  wrong  done  to  the  plain- 


tiff. Bowden  v.  Voorheis,  135  Mich. 
648,  98  N.  W.  406;  Boydan  v.  Hober- 
stumpf,  129  Mich.  137,  88  N.  W.  386. 
And  in  West  Virginia  a  provision 
as  to  exemplary  damages  has  been 
held  not  to  mean  additional  damages 
as  a  punishment  but  damages  which 
will  compensate  for  mental  anguish 
of  the  wife  where  the  sale  was  made 
under  circumstances  showing  malice 
or  wanton,  wilful  and  deliberate  dis- 
regard of  her  rights.  Pegram  v. 
Stortz,  31  W.  Va.  220,  6  S.  E.  485. 

72.  Ketcham  v.  Fox,  52  Hun 
(N.  Y.)  284,  5  N.  Y.  Supp.  272; 
Franklin  v.  Schermerhorn,  8  Hun 
(N.  Y.)    112. 

73.  Jockers  v.  Borgman,  29  Kan. 
109,  44  Am.  Rep.  625;  Rosecrants  v. 
Shoemaker,  60  Neb.  4,  26  N.  W.  794. 


§§  468,469]  CIVIL    DAMAGE    A(  TS.  r,:;i 

wanton  disregard  of  the  rights  of  oth<  rs  arc  not  essential.71  And 
in  a  recent  case  in  this  state  it  is  decided  thai  under  the  provision 
of  the  statute  that  the  wrongdoer  shall  be  liable  for  exemplary  dam- 
ages, the  awarding  of  such  damages  is  discretionary  with  the 
jury  only  as  to  the  amount  if  the  wrong  is  established.75  And 
in  an  early  case  in  Ohio  it  was  held  that  proof  of  malice  or  special 
circumstances  of  aggravation  were  not  essential.76 

§  468.  Exemplary  damages — no  breach  of  peace. 

The  recovery  of  exemplary  damages  is  not  limited  to  cases 
where  the  injury  complained  of  is  in  the  nature  of  a  tort  but 
may  be  allowed  where  no  breach  of  the  peace  has  resulted  from 
the  alleged  sale.77  And  it  was  held  proper  to  refuse  to  instruct  the 
jury,  "  You  can  only  give  exemplary  damages  in  cases  where  the 
injury  complained  of,  and  from  which  the  damage  arose,  was 
tortious  in  its  nature;  where  the  act  of  the  intoxicated  person 
was  such  as  to  warrant  the  recovery  of  exemplary  damages 
against  him,  as  when  his  act  was  a  breach  of  the  peace,  a  wilful, 
wanton  injury."  7S 

§  469.  Excessive  damages. 

Where  it   is  claimed   as  a  ground   for  review  that   a  verdict 
is  excessive    and    was   rendered    under   the   influence    of   pass 
and  prejudice  there   must  be  sonic   testimony  or  fact  of  record 
to  support  the  conclusion.79     So  where  the  case   is  one  in  which 
exemplary  damages  may  be  awarded  a  verdict   will  not   be  set 

T4.  Miller    v.    Hammers,    93    Town  be    recovered,    we    do    not    think    it 

746,  61   X.  W.  1087.  should  be  so  restricted   in   its  opera- 

T5.     Peterson     v.     Brackey     (Iowa  tion   as  required  by  this  instruction. 

1909),  119  X*.  W.  967.  There     are     many     cases     where 

76.  Schneider  v.  Hosier,  21  Ohio  Si .  emplary  damages  should  be  allowed 
gg  when   I  here  is  no  bn  ich  of  the  i 

77.  Goodenough  v.  McGrew,  44  and  where  such  damages  could  noi  be 
[owa    |i7o  recovered   by   the   intoxicated   pel 

7s.  Goodenough     v.     McGrew,     44      Per  Rothrock,  J. 
Iowa  670.    The  court  said:  "As  the         79.  Nowotny  v.  Blair,  32  Neb.  175, 
statute  allows  exemplary  damages  to      49  X.  W.  357. 


532  CIVIL    DAMAGE    ACTS.  [§    479 

aside  as  excessive  unless  so  far  erroneous  as  to  permit  evidence 
of  partiality,  passion,  corruption  or  prejudice  on  the  part  of  the 
jury.80  And  in  determining  whether  a  verdict  for  loss  of  support 
furnished  by  a  son  is  excessive  the  court  will  not  enter  into  a 
computation  as  to  the  probable  costs  of  the  bare  necessaries  of  her 
support  during  the  probable  term  of  her  life.81  Where  the 
damages  awarded  are  excessive  the  court  on  error,  on  a  remittitur 
of  such  excess,  may  affirm  the  judgment.82 

§  470.  Injury  to  person  or  property  generally. 

The  injury  to  person  or  property  in  such  a  statute  refers  to  an 
injury  to  or  in  violation  of  a  legal  right  in  actual  enjoyment 
before  and  at  the  time  of  the  injury  thereto.83  As  we  have  stated 
elsewhere  in  order  to  constitute  an  injury  done  to  the  "  person  " 
there  must  have  been  some  actual  violence  or  some  physical  injury 
to  the  health  or  person,  a  loss  of  society  of  a  husband,  or  mental 
anguish  or  disgrace  not  being  such  within  the  meaning  of  the 
statute.84  A  person  is  injured  in  his  property  in  case  of  some 
actual  loss  of  or  injury  to  it,  as  where  a  liquor  dealer  placed  an 
intoxicated  person  in  a  sleigh  and  owing  to  the  latter's  intoxica- 
tion he  was  unable  to  manage  the  horse  which  ran  away  and  was 
killed,  in  which  case  the  liquor  dealer  was  held  liable  to  the 
owner  of  the  horse  for  its  value.85  And  where  a  husband  sold, 
while  intoxicated,  a  horse  belonging  to  his  wife,  it  was  held  that 
she  could  recover  its  value  of  the  person  selling  the  liquor  which 
produced  the  intoxication.86  But  whore  a  minor  becomes  in- 
toxicated and  is  incapacitated  from  work  by  reason  thereof  an 
employer  with  whom  he  has  a  verbal  contract  in  respect  to  fur- 
so.  Pegram  v.  Stortz,  31  W.  Va.  84.  §  463  herein.  See  Mulford  v. 
220,  6  S.  E.   185.                                            Clewell,  21  Ohio  St.  191. 

81.  De     Puy     v.     Cook,     90     Hun  85.  Dunlap  v.  Wagner,  85  Ind.  529, 
(N.  V.)    43,  35  X.  Y.  Supp.  632.               44  Am.  Rep.  42. 

82.  Sibila    v.   Bahney,   34  Ohio  St.  86.  Woolheather  v.  Risley,  38  Iowa 
399.                                                                   486. 

v.  Ogden,  56  111.  App.  100. 


g    171j  CIVIL    DAMAGE    A<  TS.  533 

nishing  supplies  and  medical  attendance,  and  who  furnishes  such 
attendance,  is  not  injured  in  his  "property"  within  the  meaning 
of  such  a  statute.87 

§  471.  Statute  as  to  allowance  for  taking  care  of  person. 

By  statute  in  some  states  provision  has  been  made  allowing  one 
taking  care  of  an  intoxicated  person  a  certain  sum  per  day.  So 
under  the  act  of  1872,  in  Illinois,  one  who  took  care  of  a  person 
while  drunk  or  while  sick  as  a  result  of  his  intoxication,  was  en- 
titled to  recover  a  certain  sum  for  each  day.  Under  this  act  the 
sum  was  held  recoverable  by  one  who  took  care  of  a  person  who 
broke  his  leg  while  intoxicated.88  And  a  statute  providing  that 
neither  a  husband  nor  wife  may  recover  for  services  rendered  for  the 
other  is  held  to  apply  only  to  suits  between  husband  and  wife  and 
not  to  prevent  a  wife  recovering  for  services  rendered  caring  for 
an  intoxicated  husband  in  an  action  under  a  civil  damage  statute 
allowing  for  services  rendered  in  caring  and  providing  for  an 
injured  person.89  So  under  a  statute  allowing  so  much  per  day 
to  "  every  person  "  who  takes  care  of  an  intoxicated  person  it  has 
been  decided  that  a  woman  who  takes  care  of  her  husband  in  such 
a  case  is  entitled  to  recover.91  But  under  a  statute  allowing  such 
a  sum  per  day  a  saloon  keeper  is  only  responsible  for  the  natural 
and  probable  results  of  the  sale  and  it  is  not  such  a  result  that  the 
person  intoxicated  should  receive  bodily  injury  by  the  wilful 
criminal  act  of  a  third  party.92  And  under  a  statute  authorizing 
a  recovery  of  a  certain  sum  per  day  by  one  who  takes  charge  of 
and  provides  for  an  intoxicated  person,  a  physician  who  treats 
professionally  a  person  who  is  injured  while  intoxicated,  is  not 
within  its  meaning.93 


87.  Streever     v.     Birth.     62     Hun  W.  Wightman   v.   Deverc,   33   Wis 
\.  Y.)   298,  17  N.  Y.  Supp.  195. 

88.  Brannan  v.  Adams,  76  [11.  331 

89.  McVey  v.  Williams,  91  111.  App 
144.  12 


(\.  Y.)   298.  17  X.  Y.  Supp.  195.  57°- 

02.    Schulte    v.    Menke,     111     111. 

App.  212. 
89.  McVey  v.  Williams.  91  111.  App.  „:{i  Sansom  v.  Greenough,  55  Iowa 


534 


CIVIL    DAMAGE    ACTS. 


[§  472 
§  472.  Means  of  support — where  legal  obligation. 

Injury  to  the  means  of  support  referred  to  in  such  a  statute 
is  generally  held  to  mean  and  include  such  support  as  the  person 
would  be  legally  bound  to  furnish.94  Thus,  where  a  father  is 
obligated  by  statute  to  support  an  adult  son  under  certain  con- 
ditions and  such  conditions  exist  by  reason  of  such  son  being 
injured  while  intoxicated  so  as  to  render  him  to  a  great  extent 
helpless,  the  father  is  entitled  to  recover  damages  therefor.95 
And  where  a  sister  is  unable  to  provide  for  herself  and  under  the 
law  of  the  state  is  entitled  to  legal  support  from  her  brother  she 
may  recover  for  loss  of  support  owing  to  his  continual  intoxicated 
condition  where  the  statute  gives  a  right  of  recovery  to  any  one 
so  injured  in  their  means  of  support.96  And  this  without  regard 
to  whether  she  could  have  enforced  such  right  of  support  or  not.97 
And  where  a  son  who  may  be  compelled  by  law  to  support  a  parent 
voluntarily  assumes  such  support,  this  answers  the  requirements 


94.  Jury  v.  Ogden,  56  111.  App. 
100. 

95.  Clinton  v.  Laning,  61  Mich.  355, 
28  N.   W.    125. 

96.  Nagle  v.  Keller,  141  111.  App. 
444. 

97.  Nagle  v.  Keller,  237  111.  431, 
86  N.  E.  694.  The  court  said:  "The 
statute  gives  a  cause  of  action  to  any 
person  who  shall  be  injured  in  per- 
son, property,  or  means  of  support 
cither  by  an  intoxicated  person  or  in 

equence  of  the  intoxication  of  any 
person,  against  the  person  causing 
such  intoxication.  There  seems  to  be 
no  room  for  construction.  It  is  not 
necessary  that  the  person  injured 
should  sustain  any  business  or  per- 
sonal relation  to  the  intoxicated  per- 
son. Any  person  sustaining  an  in- 
jury of  the  kind  mentioned,  whether 
directly  by  the  act  of  an  intoxicated 
pf-rson  or  indirectly  in  consequence  of 
his    intoxication,    may    maintain    the 


action.  King  v.  Haley,  86  111.  106, 
29  Am.  Rep.  14.  The  appellee  was,  in 
fact,  supported  by  her  brother.  She 
was  dependent  upon  him  and  he  was 
legally  liable  for  her  support.  She 
was  wholly  without  means  and  un- 
able to  earn  a  livelihood.  Under  the 
circumstances  disclosed  by  the  record 
the  statute  (Hurd's  Rev.  St.  1908,  c. 
107)  imposed  upon  the  brother  the 
duly  of  supporting  her.  People  v. 
Hill,  163  111.  186,  46  N.  E.  796,  3(1 
L.  R.  A.  634;  Danley  v.  Hibbard,  222 
111.  88,  78  N.  E.  39.  Whether  it  was 
a  legal  right  which  appellee  could 
have  enforced  against  her  brother  or 
not,  it  was  a  legal  liability  which  the 
law  imposed  upon  him  and  provided 
means  for  enforcing,  of  which  she  was 
receiving  the  benefit,  and  which  she 
was  deprived  of  in  consequence  of  his 
intoxication.  The  statute  gives  her  a 
cause  of  action  for  such  deprivation." 
Per  Dunn,  J. 


e    473-1  CIVIL     DA.MAC1.     A<  T>  535 

of  the  law  as  effectually  as  if  rendered  by  compulsion,  and  a 
mother  who  has  been  deprived  of  her  means  of  supporl   by  the 

death  of  her  son  caused  by  intoxication  may  recover  theref* 
So  where  a  mother  is  injured  in  or  deprived  of  her  means  of 
support  by  the  death  of  her  son,  she  may  recover  therefor  and  the 
fact  that  such  aid  was  furnished  by  the  son  voluntarily  does  not 
affect  her  right  to  recover,  the  son  being  also  under  a  Legal  obli- 
gation to  support  her."  In  estimating  the  damages  to  a  father 
for  injuries  to  a  son,  rendering  the  latter  helpless  and  imposing 
upon  the  father  the  duty  of  supporting  him,  the  period  of  time 
for  computing  them  should  not  be  the  son's  expectancy  of  life, 
but  the  period  of  future  support  should  be  based  on  the  life 
expectancy  of  the  father.1 

§  473.  Injury   to    "means   of   support  "—generally— action   by 
wife. 

These  statutes  ordinarily  provide  for  a  recovery  for  injury  to 
means  of  support  having  in  view  more  particularly  the  fact  that 
by  the  intoxication  of  a  man  his  wife  and  children  are  in  many 
cases  deprived  of  that  support  which  the  husband  and  father 
would  be  in  a  position  to  give  them  except  for  the  result  of  his 
becoming  intoxicated.  The  wife  is  entitled  to  support  at  the 
hands  of  her  husband  and  as  referring  to  her  the  phrase  "  u, 
of  support"  includes  what  the  husband  might  have  earned  by 
his  labor  and  attention  to  business  and  contributed  to  the  support 
of  the  family.2  Where  it  is  shown  that  the  husband's  death  was 
produced  by  intoxication  caused  by  liquors  furnished  by  the  de- 
fendant, an  inference  arises  of  an  injury  to  the  wife's  means  of 
support,  in  the  absence  of  other  proof,  which  will  shift  the  burden 
of  proof  to  the  defendant.      The  right  of  sin-port  is  not  limited  to 

98.  DePiiv      v.      Cook.      00      TTun  1.  Clinton  v.  Laning,  61  Mich.  355, 

(X.  Y.)    43,   35  X.  V.  Supp.  632.  28   N.  W.  125. 

no.  Eddy   v.   CourtrigM,   01   Mich.  -•  Wightman    v.    Devere.    33    Wis. 

264,  51   X.  W.  887.  570. 


536  CIVIL    DAMAGE    ACTS.  [§   473 

the  supplying  of  the  bare  necessaries  of  life  but  embraces  com- 
forts such  as  are  suitable  to  the  wife's  situation  and  the  husband's 
condition  in  life.4  The  term  is  held  to  embrace  all  those  resources 
from  which  the  necessaries  and  comforts  of  life  are  or  may  be 
supplied  such  as  lands,  goods,  salaries,  wages  or  other  sources  of 
income.5  So  it  has  been  held  proper  to  instruct  the  jury  that 
there  is  a  legal  obligation  on  the  part  of  the  husband  to  support 
his  wife  and  that  this  right  of  support  is  not  limited  to  supplying 
the  bare  necessaries  of  life,  but  includes  comforts  and  whatever 
is  suitable  to  the  wife's  situation  and  the  husband's  condition  in 
life,  and  that  whatever  lessens  or  destroys  her  husband's  ability 
to  supply  her  with  suitable  comforts  to  that  extent  injures  her 
means  of  support,  even  though  she  is  not  thereby  deprived  of  the 
necessaries  of  life.6  And  a  wife,  in  order  to  recover  for  loss  to 
her  means  of  support,  need  not  show  that  she  has  been  in  whole 
or  in  part  without  present  means  of  support,  it  being  sufficient 
if  her  future  means  of  support  have  been  cut  off  or  diminished 
below  what  is  reasonable  for  a  person  in  her  station  of  life  and 
below  what  they  otherwise  would  have  been.7  But  though  the 
right  of  support  is  not  limited  to  the  bare   necessaries  of  life, 

3.  Flynn  v.  Fogarty,  106  111.  263.  the   duty  of   furnishing  the   wife  the 

4.  Hackett  v.  Smelsley,  77  111.  "  comforts  and  surroundings  reasona- 
109;  Thill  v.  Pohlman,  76  Iowa  638,  ble  and  necessary  for  the  position  in 
41  N.  W.  385 ;  Gorey  v.  Kelly,  64  Neb.  society  in  which  she  lived  "  and  that 
605,  90  N.  W.  554.  if  he  failed  to  so  "  provide  for  her  " 

5.  Meidel  v.  Anthis,  71   111.  241.  and  such  failure  resulted  from  the  in- 

6.  McMahon  v.  Sankey,  133  111.  toxication  caused  or  contributed  to  by 
636,  24  N.  E.   1C27.  defendant    she    could    recover,    there 

An  instruction  has  been  held  to  be  being  nothing  to  show  the  station  she 

substantially    correct    which    advises  occupied  or  that  she  had  in  the  past 

the  jury  that  a  wife  may  be  injured  been  provided  for  in  the  manner   in- 

in    her   means   of    support    when    her  dicated,  as  the  liability   is   not  what 

husband's  ability  to  furnish  her  with  the  husband  ought  to  have  done  but 

the  comforts  of  life  is  lessened  or  de-  what  he  had  done  before  defendant's 

stroyed,  although  she  may  not  be  de-  tort.      Bellison   v.   Apland,    115   Iowa 

prived  of  the  bare  necessaries  of  life.  599,  89  N.  W.  22. 

Maloney  v.  Dailey,  67  111.  App.  427.  7.  Mulford  v.  Clewell,  21  Ohio  St. 

In  Iowa  it,  has  been  held  improper  191. 
to  charge  that  the  husband  is  under 


§  474]  CIVIL    DAMAGE    acts.  537 

in  no  case  can  the  judgment  be  for  a  greater  sum  than  the  value 
of  the  means  of  support  of  which  the  plaintiff  has  been  deprived.8 
Where  the  claim  for  damages  is  Imsed  on  an  injury  to  the  plain- 
tiff's means  of  support  the  recovery  should  be  Limited  thereto  and 
it  is  improper  to  instruct  the  jury  that  there  may  I"-  a  recovery 
for  injuries  to  property,  person  or  means  of  support.''  And  the 
object  of  such  a  statute  being  to  protect  a  wife  and  children  from 
want  caused  by  the  loss  of  support  of  the  husband  and  father,  it 
has  been  decided  that  if  he  has  abundance  of  means  of  support 
for  himself  and  family  the  fact  that  liquor  is  sold  to  him  by 
means  of  which  he  becomes  intoxicated  does  not  entitle  a  wife  to 
a  recovery  in  the  absence  of  some  injury  to  the  person  of  the 
wife,  to  the  property  or  to  her  means  of  support.10  Under  the 
New  York  statute  there  has  been  held  to  be  no  distinction  be- 
tween cases  in  which  the  loss  of  the  means  of  support  is  the  direct 
result  of  the  intoxication  and  those  in  which  it  is  the  remote 
result  thereof.11  And  the  liability  in  such  actions  for  injury  to 
"  means  of  support  "  is  held  not  to  be  confined  to  cases  of  injury 
resulting  from  the  drunkenness,  immediately,  and  during  its  con- 
tinuance, but  extends  as  well  to  cases  where  the  injury  results 
from  insanity,  sickness  or  inability,  induced  by  intoxication.12 

§  474.  Means  of  support — right  of  action  generally — defenses. 

A  wife  must  bring  herself  within  the  statute  in  order  to  entitle 
her  to  recover.13  She  is  a  person  "  aggrieved,"  within  the  mean- 
ing of  that  word  as  used  in  such  a  statute  and  may  recover  for 

8.  Roose  v.  Perkins,  0  Neb.  304.  2  13.  Hellerman  v.  Arnold,  71  111. 
\.  W.  715,  31  Am.  Rep.  409.  632. 

9.  Delfel  v.   Hanson,  2   Wash.    194,  Must  show  lawful  marriage.— 

26  Pac   220  I"  Vermont  it  has  been  decided  that 

,_    _     .  _,     ,     _„  T11    10-         the  dependency  referred  to  in  Buch  a 

l<>.  Con f rev  v.  Stark,   tl  111.   IS*.  '  ■ 

statute  must  be  a  legal  one  and  that 

11.  McCarty     v.     Wells,     51     Hun      a  wife  8uing  must  ahow  her  marriage 

(N.  Y.)    171.  4  N.  Y.  Supp.  072.  ]awfu]  Qr  fl  ^  ^   m>  was  |egiti. 

12.  Mulford  v.  Clewell,  21  Ohio  St.  mate<  Good  v  Towns,  56  Vt.  410.  4^ 
191.  Am  Hep.  799. 


538  CIVIL   DAMAGE    ACTS.  [§  475 

sale  of  liquor  to  her  husband  who  is  an  habitual  drunkard  without 
regard  to  whether  the  judgment  recovered  would  be  separate  or 
community  property.14  Where  the  husband  has  no  other  means 
of  support  of  his  wife  than  his  wages,  an  injury  which  cuts  these 
off  is  an  injury  to  the  wife's  means  of  support.15  And  the  taking 
of  liquor  by  the  husband  is  not  contributory  negligence  preventing 
the  wife  from  recovering.16  Nor  is  the  fact  that  the  wife  signed 
the  petition  for  the  defendant's  license  a  bar  to  an  action  by  her 
under  the  civil  damage  statute,  as  by  such  act  on  her  part  she 
does  not  consent  to  an  unlawful  sale  of  liquors  by  the  licensee.17 
And  in  an  action  by  a  wife,  the  fact  that  the  liquors  drank  by 
the  husband  were  bought  by  another  person  does  not  preclude  a 
recovery.18  Again,  a  statement  by  the  purchaser  to  a  saloon  keeper 
that  he  wished  the  liquor  for  medicinal  purposes  does  not  re- 
lieve the  latter  from  liability  as  such  a  dealer  is  not  authorized 
to  sell  for  that  purpose  any  more  than  any  other.19  In  an  action 
to  recover  for  an  injury  to  a  wife  it  is  not  necessary  to  join  her 
husband  as  plaintiff,  as  it  is  the  intention  of  such  an  act  to  protect 
the  wife  from  the  effects  of  her  husband's  indulgence  and  to 
require  that  he  should  be  joined  or  his  consent  given,  would  tend 
to  nullify  the  law  creating  the  right.20 

§  475.  Means  of  support — income  of  wife  or  ability  to  labor  im- 
material. 

As  the  husband  is  under  a  legal  obligation  to  support  his  wife 
the  fact  that  she  may  have  means  of  support  of  her  own  should 

14.  Burlew  v.  Schiller,  41  Tex.  Civ.  18.  Carter  v.  Bernstein  Bros.,  104 
App.  202.  92  S.  W.  814,  refusing  to  Iowa  572,  73  N.  W.  1076;  compare 
follow  Wartelsky  v.  McGee,  10  Tex.  Dudley  v.  Parker,  132  N.  Y.  380,  30 
Civ.  App.  22D.  30  S.  W.  69.  N.  E.  737,  aff'g  55  Hun  29,  8  N.  Y. 

15.  Thomas    v.    Dansby,    74    Mich.  Supp.  600. 

398,    11   X.  W.  1088.  lJ>-  McDonald    v.    Casey,    84    Mich. 

1<>.  Davies    v.    McKnight,  140    Pa.      505,  47  N.  W.  1104. 

St.  010.  23  Atl.   320.  20.  Wright  v.  Tipton,  92  Tex.  108, 

17.  Jockera    v.    Borgman,  29    Kan.      46  S.  W.  629. 
109,  44  Am.  Rep.  025. 


§§  470,477]  «  IVIL    DAMAGE    A(  I  3.  ;,:;:, 

not  affect  her  right  to  recover   for  Loss  of  means  of  support.21 
And  because  a  wife  may  lie  able-bodied  ami  can  earn  a  livelihood 

it  docs  imt  follow  thai  .-he  does  not  suffer  injury  in  mean-  of 
support  by  loss  of  her  legal  supporter,  nor  doe.-  such  a  conclusion 
follow  from  the  fact  that  she  may  have  independent  means 
her  own.2-  So  though  a  wife  may  be  in  receipt  of  funds  from 
her  children  as  well  as  from  her  husband,  ye1  if  the  income  from 
tho  latter  is  diminished  or  cut  off  such  injury  is  an  injury  to  her 
means  of  support,  without  regard  to  what  may  be  contributed  to 
her  by  her  children.23 

§  476.  Means  of  support — action  by  wife — effect  of  divorce. 

Where  such  a  right  of  action  has  accrued  in  favor  of  a  married 
woman,  it  is  not  lost  by  the  fact  of  her  subsequently  obtaining  a 
divorce.  The  existence  of  this  relation  is  only  essential  under 
the  statute  to  the  inception  of  the  right.24 

§  477.  Means  of  support — action  by  wife — pleading. 

A  complaint  by  a  wife  alleging  that  her  husband  was  intoxi- 
cated by  liquor  purchased  of  the  defendants,  and  thereby  neglected 
his  work,  and  squandered  his  money  and  damaged  the  plaintiff 
in  her  means  of  support,  has  been  held  to  sufficiently  show  how 
she  was  injured.25  And  it  is  sufficient  in  an  action  by  a  wife  to 
allege  that  she  was  injured  in  her  means  of  support  in  con- 
sequence of  the  intoxication,  but  under  such  a  declaration  she 
can  only  prove  the  extent  of  the  injury  to  her  means  of  support 
which  she  had  sustained  as  a  necessary  consequence  of  the  hus- 
band's intoxication,  as  that  resulting  from  \n>  inability  to  labor 
while  so  intoxicated.26 

21.  Hackett    v.    Smelsley,    77     111.      636,  24  X.   E.   1027. 

109.  -'•  Nordin   v.   Kjos,   13  S.  D.  407. 

22.  Betting  v.  Hobbett,  142  111.  72.      s:i  X.  W.  :>7:;. 

30    X.    E.    104S.    citing    Haeketl    v.  25.  Barnaby  v.  Wood,  50  Ind.  405. 

Smelsley.  77   111.   122.  -,:-  Pegram    v.    Stortz,    31    W.   Va. 

23.  McMahon    v.    Sankey,    13:5    111.      220.  6  S.  E,   185. 


540  CIVIL    DAMAGE    ACTS.  rj    47s 

§  478.  Means  of  support — action  by  wife — evidence  of  earnings 
and  financial  condition. 

In  an  action  by  a  wife  to  recover  for  injury  to  her  means  of 
support,  evidence  is  properly  admissible  as  to  what  were  the 
means  of  support  furnished  by  the  husband  in  order  that  the 
jury  may  properly  estimate  what  damages  may  be  awarded  her 
for  the  injury  she  has  sustained.27  In  estimating  the  damages 
the  jury  may  consider  the  situation  of  the  deceased,  his  annual 
earnings,  his  estate,  if  any,  his  habits  and  health  and  his  reason- 
able expectation  of  life.28  So  the  husband's  wages  and  earnings 
are  to  be  considered  in  an  action  by  his  widow  to  recover  for 
injury  to  her  means  of  support  resulting  from  his  death.29  And 
evidence  tending  to  prove  that  the  money  earned  by  the  husband 
while  living  was  the  source  of  and  devoted  to  the  support  of  the 
wife  and  children  is  admissible.30  So  a  wife  may  testify  as  to 
what  her  husband's  earnings  were  and  how  much  per  week  she 
received  therefrom  either  in  cash  or  otherwise.31  And  evidence 
of  the  prosperity  and  financial  condition  of  plaintiff's  husband  is 
admissible  as  showing  plaintiff's  means  of  support.32  So  in  an 
action  by  a  wife  evidence  that  the  husband  was  in  consequence  of 
the  wrong  alleged  reduced  from  a  prosperous  business  now  to  a 
condition  bordering  upon  imbecility  and  financial  insolvency 
has  been  held  to  be  properly  admitted.33  And  evidence  in  an 
action  for  loss  of  a  husband's  support,  that  he  had  a  shop  of  his 

27.  Mayers  v.  Smith,  121   111.  442,       Flynn  v.  Fogarty,  106  111.  203. 

13  N.  E.  210.  29.  Betting  v.  Hobbett,  142  111.  72, 

28.  Dunlavey  v.   Watson,    38   Iowa       30  N.  E.  1048. 

398;  Boose  v.  Perkins,  9  Neb.  304,  2  30.  Gran  v.  Houston,  45  Web.  813, 

N.  W.  714.  31  Am.  Rep.  409,  holding  04  N.  W.  245. 

that   the   Carlisle   tables   may   be   in-  31.  Brandt  v.  McEntee,  53  111.  App. 

troduced      where     deceased     was     a  467. 

strong,   robust   man.  32.  Manzer   v.    Phillips,    139   Mich. 

As  showing  the  injury  sustained  by  01,   102  N.   VV.   292,  citing  Weiser  v. 

loss   of   support    from    death    of   hus-  Welch,  112  Mich.  134,  70  N.  W.  438. 

band   evidence    is    proper   of  the  aire,  33.  Kliment   v.   Corcoran,   51   Neb. 

physical  condition,  habits  of  industry  142,  70  N.  W.  910. 
and  thrift  and  income  of  the  deceased. 


§§  479,480]  CIVIL    DAMAGE    ACTS.  .-,11 

own,  was  a  competent  barber,  and  when  sober  furnished  proper 
support  for  his  wife  and  child,  is  competent.34  Bui  conjectures 
as  to  what  the  husband  would  have  made  in  any  given  case  of 
business  management  had  he  lived,  are  not  a  proper  basis  for  the 
computation  of  damages.35 

§  479.  Means  of  support — action  by  wife — evidence  as  to  prior 
conduct. 
In  an  action  by  a  wife  to  recover  for  an  injury  caused  by  a 
sale  of  liquor  to  her  husband,  evidence  of  the  extent  of  the  hus- 
band's drinking  at  a  time  long  prior  to  that  covered  by  the  action 
is  immaterial.30  So  the  question  as  to  the  conduct  of  the  husband 
previous  to  the  sale  of  liquor  to  him  by  the  defendant,  which  caused 
or  contributed  to  the  intoxication  producing  the  injury  to  the 
wife's  means  of  support  is  immaterial.37  But  while  the  fact  may 
be  true  that  the  husband  was  of  intemperate  habits  and  thai  this 
does  not  preclude  a  right  to  recover,  yet  evidence  of  such  fact  may 
properly  be  admitted  as  bearing  upon  the  measure  of  damages.38 
properly  be  admitted  as  bearing  upon  the  measure  of  damages.38 

§  480.  Action  by  wife — evidence  as  to  age  and  number  of  chil- 
dren. 

In  an  action  by  a  wife  to  recover  for  the  injury  to  her,  evidence 
of  the  number  and  ages  of  the  children  is  not  admissible.39  The 
action  is  to  recover  for  injury  to  her  means  of  support  and  is 
limited  thereto  since  where  there  arc  children  each  child  may  sue 


•'«»•  Garrigan  v.  Kennedy,  19  S.  D.  :?s-  Uldrich    v.    Gilmore,    35    Xeb. 

11,  101  N.  W.  L081.  -ss-  53  X.  W.  135. 

85.  Karan   v.    Pease,   45    [11.   App.  ;{!>-  Welch  v.  Jugenheimer,  .">(;  Iowa 

382.  11,   8    X.    W.    673,    II    Am.    Rep.    77: 

36.  League    v.    Ehmke,    120    Iowa  Bugging  v.   Kavanagh,  52   [owa   368; 
464,  94  N.  W.  938.  Johnson   v.   Schultz,  74   Mich.   7."..  41 

37.  Woolheather  v.  Risley,  38  Iowa  N.    W.    865;    Larzelere   v.    Kirchges- 
4SG.  sner,  7:5  Mich.  276,  41  X.  \V.  4S8. 


542 


CIVIL    DAMAGE    ACTS.  [§    481 

and  recover  for  himself.40  So  it  was  held  to  be  error  to  permit 
the  plaintiff  in  an  action  to  recover  for  unlawful  sale  of  liquor 
to  her  husband  to  testify  that  she  had  a  three-year  old  child.41 
But  in  South  Dakota  it  has  been  decided  that  evidence  in  an 
action  for  loss  of  support  from  intoxicating  liquor  sold  by  de- 
fendant to  plaintiff's  husband  that  she  had  a  child  dependent  on 
her  for  support  is  competent.42  And  though  evidence  as  to  the  age 
and  number  of  minor  children  is  held  to  be  inadmissible  in  a  suit 
by  a  wife,  yet  it  has  been  held  admissible  in  a  action  by  a  minor 
son.43 


§  481.  Means  of  support— action  by  wife— measure  of  damages 
— evidence. 

The  measure  of  damages  for  loss  to  means  of  support  of  a  wife 
should  not  be  the  amount  of  loss  occasioned  to  the  husband's 
estate,  but  the  diminution  thereby  if  any  resulting  to  her  means 
of  present  and  future  support.44     As  bearing  upon  the  measure 


40.  Roseerants    v.    Shoemaker,    60 
Mich.  4,  26  X.  W.  794. 

41.  Boydan    v.    Haberstumpf,    129 
Mich.  137,  88  N.  W.  386. 

42.  Garrigan  v.  Kennedy,  19  S.  D. 
11,  101  N.  W.  1081. 

43.  Shull  v.  Arie,  113  Iowa  170,  84 
X.  W.  1031. 

44.  Mulford  v.  Clewell,  21  Ohio  St. 
191. 

Instruction  as  to  wife's  meas- 
ure of  damages  for  unlawful 
sales  to  her  husband  held 
correct. — "  In  measuring  the  dam- 
ages  in  this  case,  if  you  find  the 
plaintiff  to  be  entitled  to  any  dam- 
ages  by  a  preponderance  of  evidence, 
you  shall  lake  into  consideration  her 
station  in  life,  the  habits  of  her  hus- 
band in  providing  for  her  support, 
and  the  support  furnished  to  her 
prior  to  the  illegal  sales,  if  any,  you 
find  to  be  proved. 


Plaintiff  cannot  recover  the  money 
spent  by  her  husband  in  defendant's 
saloon  if  any.  She  is  not  entitled 
to  all  the  wages  earned  by  her  hus- 
band. At  the  most,  plaintiff  is  only 
entitled  to  such  support  as  she 
would  have  received  but  for  the  sales, 
if  any,  that  you  find  to  have  been 
made  to  her  husband  illegally,  and 
then  only  to  such  necessaries  and 
comforts  as  are  suitable  to  a  wife 
in  her  station  and  situation  in  life 
and  her  husband's  station  and  situ- 
ation in  life.  She  is  not  entitled  in 
any  case  to  luxuries.  There  has  been 
evidence  in  this  case  of  the  earnings 
of  the  husband,  but  T  charge  you 
that  his  earnings  alone  is  not  the 
criterion  to  measure  her  support." 
McNetton  v.  Herb  (Mich.  1909), 
123  X.  W.  17. 

"Where   a  person  is  injured  hy 
another  while  intoxicated  the  actual 


§  481] 


CIVIL    DAMAGE    A<   I  -. 


i43 


of  damages  it  is  proper  in  an  action  by  a  wife  to  show  the  jury 
the  nature  and  character  of  the  injuries  received  for  the  purpose 
i't'  enabling  them  to  determine  the  extenl  to  which  his  earning 
capacity  had  been  impaired.46  So  evidence  is  proper  showing 
any  want  of  or  inability  of  a  husband  to  obtain  employ] 
caused  by  previous  habits  of  intoxication  resulting  from  Bales  by 
the  defendant  to  him.40  And  in  an  action  by  a  wife  for  loss  of 
support  caused  by  an  injury  to  her  husband  while  intoxicated,  it 
is  proper  to  permit  her  to  t<  stify  that  during  the  time  he  was  laid 
up  she  had  to  call  on  the  public  authorities  for  help.47  And  a 
husband  is  a  competent  witness  in  an  action  by  a  wife  to  recover 
damages  for  an  injury  sustained  by  h<  r  as  the  result  of  the  sale 
of  intoxicating  liquors  to  her  husband.48     So  he  may  be  permitted 


damages  which  may  be  recovered  in 
an  action  by  the  wife  may  include  the 

amount  due  for  medical  attendance, 
the  value  of  the  wife's  services  in 
nursing  the  husband  and  the  loss  to 
her  means  of  support  by  his  dimin- 
ished ability  to  labor.  Thomas  v. 
Dansby,  74  Mich.  398,  41  X.  W.  1088. 

Mitigation  of  damages. — It  has 
been  decided  that  a  judgment  obtained 
by  the  wife  for  injury  to  her  mems 
of  support  is  admissible  in  an  action 
against  another  party  for  injuries  ac- 
cruing during  the  same  period  for 
the  purpose  of  showing  the  actual 
extent  of  the'  wrong  done  by  the  de- 
fendant. Engleken  v.  "Webber,  47 
Iowa   558. 

But  in  an  action  by  a  wife,  in  or- 
der to  render  admissible  evidence  of 
recoveries  from  other  parties  to  re- 
duce damages,  it  must  be  shown  that 
such  recoveries  were  for  sales  during 
the  same  time  as  thai  covered  by  the 
alleged  sales  by  the  defendant.  Jack- 
son v.  Xoble,  54  Iowa  641,  7  X.  W. 
88. 

45.  Faivre  v.  Mandereheid,  117 
Iowa  724,  90  X.  W.  76. 


Wliere  it  appeared  from  the  evi- 
dence that  plaintiff's  husband  while 
intoxicated  fell  and  broke  his  leg  it 
was  held  proper  to  permit  the  wife  to 
testify  that  "he  is  not  able  to  work 
now  like  he  did  before  he  got  his  leg 
broke."  Eastwood  v.  Klamm  (Neb. 
1909),  120  X.  W.  14!). 

4G.  Roth  v.  Eppy,  80  111.  283. 

47.  Eastwood      v.      Klamm 
1909),  120  X.  W.  1  to. 

See  also  Acken  v.  Tinglehoff,  (Xeb. 
1909),  110  X.  \Y.  456,  wherein  it  is 
said:  "  It  was  necessary  for  the  plain- 
tiff to  prove  that  the  family  was  not 
supported  by  her  husband  and  it  was 
perfectly  proper  to  prove  that  the  sub- 
sistence  of  the  family  was  obtained 
from  other  sources.'"  Per  Efferson, 
C. 

In  an  action  by  a  wife  for  loss 
of  means  of  support  evidence  that 
was  supported  by  her  own 
labor  and  by  the  county  is  material. 
Fox  v.  Underlich,  64  Iowa  1S7.  20  X. 
W.  7. 

•is.  Davenport  v.  Ryan,  SI  111.  218. 


544 


CIVIL    DAMAGE    ACTS. 


[§    481 


to  state  bow  much  he  paid  defendant  for  liquor  or  tending  to  show 
the  injury  received  by  the  wife  in  her  means  of  support.49  And  it 
has  been  held  that  the  wife  may  recover  from  the  saloon  keeper 
money  which  he  received  from  the  husband  for  liquors.50  Again 
evidence  is  admissible  of  money  borrowed  by  a  husband  to  pay 
for  treatment  for  the  liquor  habit  in  an  action  by  the  wife 
as  tending  to  show  an  injury  to  her  means  of  support.51  And 
in  an  action  by  the  wife  it  is  error  to  instruct  the  jury  that 
the  husband's  previous  habit  of  becoming  intoxicated  should  be 
considered  in  aggravation  of  damages  where  it  does  not  appear 
that  the  defendant  was  acquainted  with  such  previous  habit.52 
But  where  a  wife  is  given  a  cause  of  action  for  different  injuries, 
and  in  the  declaration  she  only  alleges  one  injury,  the  evidence 
should  be  confined  to  such  injury.53  So  where  a  wife  only  alleges 
injury  to  her  means  of  support,   evidence   tending  to  show  ill- 


49.  Ward  v.  Thompson,  48  Iowa 
588. 

What  proportion  -was  paid  to 
the  defendant  may  be  stated  by 
the  husband.  Hemmens  v.  Bentley, 
32  Mich.  89. 

50.  Rouse  v.  Melsheimer,  82  Mich. 
172,  46  N.  W.  372. 

But  see  Manzer  v.  Phillips,  139 
Mich.  61,  102  N.  W.  292,  holding  that 
error  in  the  admission  of  testimony 
as  to  the  amount  spent  by  plaintiff's 
husband  in  defendant's  saloon  is  cured 
by  subsequently  charging  the  jury 
that  no  recovery  can  be  had  for  such 
money. 

51.  Maloney  v.  Dailey,  67  111.  App. 
427. 

52.  Goodenough  v.  McGrew,  44 
Iowa  (170. 

In  an  action  by  a  wife  evidence  that 
her  husband  had  been  a  habitual 
drunkard  for  several  years  has  been 
held  inadmissible  to  reduce  the  meas- 
ure of  damages  though  it  may  be  ad- 


missible on  behalf  of  plaintiff  to  show 
an  unlawful  sale.  Huff  v.  Aultman, 
69  Iowa  71,  28  N.  W.  440,  58  Am. 
Rep.  213,  citing  Woolheather  v.  Ris- 
ley,  38  Iowa  486. 

Where  the  evidence  showed  that 
the  husband  had  been  intemperate  and 
that  the  wife  had  supported  herself 
and  partly  supported  him,  a  charge  to 
the  jury  which  directed  them  in  giv- 
ing damages  to  estimate  the  loss  of 
the  sober,  intelligent  society  of  the 
husband  and  the  loss  of  want  of 
means  of  support  was  held  to  be  in- 
appropriate it  being  declared  that 
while  the  defendants  should  be  held 
liable  for  the  injury  they  have  act- 
ually inflicted,  their  liability  should 
be  measured  by  the  effects  produced 
upon  the  husband  and  wife  as  they 
were,  and  not  as  they  might  have 
been.  Gansley  v.  Perkins,  30  Mich. 
492. 

53.  Hackett  v.  Smelsley,  77  111. 
109. 


§§  482,483]  CIVIL    DAMAGE    ACTS.  545 

treatment  of  her  by  him   while   intoxicated   should  not  be  ad- 
mitted.54 

§  482.  Action  by  wife — physical  suffering — threats — abusive  lan- 
guage. 
In  an  action  by  a  wife  it  is  competent  to  show  the  ph;. 
suffering  occasioned  l>y  want  and  neglect  as  the  resull  of  her 
husband's  intemperate  habits.55  And  injury  to  health  resulting 
from  threats  of  bodily  injury  may  be  considered  in  estimating  the 
wife's  damages.50  So  where  a  husband  while  crazed  by  drink 
drives  his  wife  from  the  home  into  the  cold  whereby  she  is  made 
sick  and  suffers  pain,  loss  of  time,  and  expense  in  being  cured, 
she  may  recover  in  an  action  against  the  seller  for  the  damages 
caused  by  such  act.57  And  in  an  action  by  a  wife,  evidence  of 
the  change  produced  in  her  husband's  disposition  by  the  use  of  liq- 
uor such  as  that,  when  sober  he  was  kind,  but  that  when  intoxicated 
he  was  quarrelsome  is  properly  admissible.58  But  it  has  been  held 
that  evidence  of  the  use  of  abusive  language  to  the  plaintiff  by 
her  husband  when  intoxicated  is  not  admissible,  it  not  being 
shown  that  the  plaintiff's  health  was  thereby  affected.59  And 
it  has  also  been  decided  that  in  an  action  for  loss  of  means  of 
support,  injury  to  the  wife's  health  caused  by  overwork,  is  not 
a  proper  element  of  damages.60 

§  483.  Action  by  wife — assault  by  husband. 

A  sale  against  protest  of  the  wife  to  an  habitual  drunkard  who 

04.  McLees  v.   Niles,   93   111.   App.  Evidence    as    to    difference    in    the 

442.  treatment  of  his  family  by  a  person 

55-  Acken      v.      Tinglehoff       (Neb.  while    intoxicated    held    properly    ad- 

1909),  119  N.  W.  456.  mitted.     See  Birkman  v.   Fahrenthold 

TO.  League    v.    Ehmke,    120    Iowa  (Tex.  Civ.  App.  1908),  114  S.  W.  429. 

464,  94  X.  \Y.  938.  &»•  Welch  v.  Jugenheimer,  56  Iowa 

57.  Beem  v.  Chestnut,  120  Ind.  390,  11,  S  \".  W.  673,   II  Am.  Rep.  77. 

22  N.  E.  303.  <;<>.   Elshire    v.    Schuyler,    15    Neb. 

58.  Eastwood     v.     Klamm      (Neb.      561,  20  N.  \V.  29. 
1909),  120  N.  W.  149. 


546  CIVIL    DAMAGE    ACTS.  [§   484 

afterwards  commits  an  assault  and  battery  on  her  gives  the  latter 
a  right  to  recover  therefor.61  So  in  Massachusetts  the  rule  pre- 
vails that  where  a  husband  assaults  his  wife  while  in  an  intoxi- 
cated condition  she  may  recover  for  the  injuries  so  sustained 
from  one  who  by  selling  liquor  to  the  husband  has  caused  such 
intoxication  in  whole  or  in  part.02  In  estimating  the  damages 
to  a  woman  from  an  assault  upon  her  by  an  intoxicated  husband 
as  a  result  of  which  she  prematurely  gives  birth  to  a  dead  child, 
the  jury  may  consider  the  pain  caused  thereby.63  But  where  a 
wife  in  her  complaint  claims  damages  for  a  certain  period  prior 
thereto,  evidence  is  not  properly  admissible  of  an  assault  upon 
her  prior  to  the  time  covered  by  the  allegations.64 

§  484.  Action  by  wife — injury  to  property. 

A  wife  may  recover  damages  sustained  by  her  by  reason  of  her 
money  being  spent  by  her  husband  for  intoxicating  liquors  or 
while  intoxicated.65  So  a  wife  may  recover  for  the  loss  of  a  horse 
owned  by  her  where  the  proximate  cause  of  such  loss  was  the  in- 
toxication of  her  husband.60  And  where  personal  property  of  a 
wife  is  lost  or  destroyed  through  the  intoxication  of  her  husband 
and  her  estate  is  thereby  diminished  and  she  had  a  right  of  action 
against  her  husband  therefor  which  action  if  commenced  would 
not  have  abated  by  her  death  she  may  under  the  civil  damage  act 
giving  the  right  to  recover  for  injury  to  person  or  property,  re- 
cover therefor  from  the  person  causing  or  contributing  to  the  in- 
toxication and  an  action  so  commenced  by  her  will  not  abate  on 
her  death.67 


61.  Wilson  v.  Booth,  57  Mich.  249,  64.  Applegate    v.    Winebrenner,    67 

23  N.  W.  799.  Iowa  235>  25  N-  w-  148- 


62.  Minot  v.  Doherty  (Mass.  1909) 


65.  Greenlee  v.  Schoenheit,  23  Neb. 

669,  37  N.  W.  600. 
89  N.  E.  188,  citing  Bryant  v.  Tidge-  eG.  Barkg  y   Woodruffj  12  m   App. 

well,  133  Mass.  86.  96. 

63.  Minot  v.  Doherty  (Mass.  1909),  67.  Morenus   v.   Crawford,   51   Hun 

89  N.  E.   188.  (N.  Y.)   89,  5  N.  Y.  Supp.  453. 


§    is:,j  CIVIL    DAMAGE    ACTS.  547 

§  485.  Action  by  wife — consent  or  acquiescence  of. 

In  most  jurisdictions  the  rule  prevails  that  the  righl  of  a  wife 
to  recover  for  injuries  sustained  as  the  result  of  the  intoxication 
of  her  husband  may  be  barred  by  conducl  on  her  part  which 
amounts  to  a  consent  to  or  acquiescence  in  his  drinking.  So  a 
wife  cannot  recover  damages  againsl  one  who  sells  intoxicating 
liquor  to  her  husband,  for  an  injur}-  to  her  person  <>r  estate,  if 
she  voluntarily  drinks  with  him  or  sanctions  the  sale  to  him.68 
So  where  a  wife  permits  her  husband  to  continue  in  her  presence 
to  drink  liquor  when  she  has  it  in  her  power  to  destroy  the  same 
and  is  not  prevented  through  fear  or  other  means  from  so  doing 
and  death  ensues  from  such  drinking  she  will  he  regarded  as 
having  been  so  far  instrumental  in  bringing  the  injury  upon  her- 
self as  will  prevent  a  recovery.69  And  the  wife  cannot  recover 
damages  for  injuries  committed  by  her  husband  upon  herself 
while  he  was  intoxicated  where  she  contributed  to  his  intoxication 
by  purchasing  the  liquors  or  uniting  with  him  in  drinking  them.70 
But  a  purchase  by  a  wife  from  the  defendant  of  liquor  for  her 
husband  either  under  compulsion  or  to  keep  him  at  home  does  not 
defeat  her  right  of  action.71  And  the  fact  that  a  wife  may  have 
purchased  liquors  and  taken  them  to  the  home  for  the  purpose  of 
detaining  her  husband  there  will  not  deprive  her  of  the  right  to 
bring  an  action  as  authorized  by  statute.72     In  Nebraska  the  rule 

6S.  Kearney  v.  Fitzgerald,  43  Iowa  preclude  her   from   a   recovery  for  an 

580.  injury  caused  by  his  death  as  a  result 

Question  for  jury. — The  question  of  intoxication.     HufT  v.  Aultman,  G9 

whether    a    wife    voluntarily    contri-  Iowa   71.  28  X.  W.    110,  58  Am.  St. 

tinted    to    the    injury    under   the   facts  Rep.  213. 

of  the  ease  may   properly   l»'   left   to  69.  Re^et  v.  Bell.  77  111 

the  jury  with   an   instruction  that   if  TO.  Engleken    v.    Hilger,    4:i    Iowa 

she  did  she  cannot  recover.     Huff  v.  563. 

Aultman.   ii!)   Iowa   71.  28   X.  W.  440,  See  also    Elliott    v.   Barry.    34   Hun 

58  Am.   Rep.  213.  (X.  Y.)    129. 

So    it    is    a    c|iicsticm    for    the    jury  71.  Ward    v.    Thompson,    48    Iowa 

whether  a  wife  has  so  far  voluntarily  588. 

contributed  to  the  injury  by  consent-  "-•  Kearney  v.  Fitzgerald,   13  Iowa 

ing  to  sales  to  her  husband  so  as  to  580. 


548  CIVIL    DAMAGE    ACTS.  [§   4£G 

prevails  that  the  fact  that  the  wife  consented  to  or  acquiesced  in 
the  sale  or  gift  of  intoxicating  liquor  to  her  husband  is  no  defense 
or  bar  to  an  action  for  damages  by  the  wife  and  in  behalf  of  her 
minor  children  for  loss  of  means  of  support.73  And  in  Illinois  it 
is  held  in  some  cases  that  evidence  that  the  wife  visited  other 
places  than  defendant's  and  drank  liquor  with  her  husband  is  not 
a  liar  to  the  action  but  should  be  considered  in  mitigation  of  dam- 
ages.74 

§  486.  Action  by  wife — consent  or  acquiescence  of  continued. 

Though  a  wife  may  have  in  the  past  encouraged  her  husband 
in  the  formation  of  the  drinking  habit  yet  if  she  afterwards 
attempts  to  prevent  his  further  use  of  liquor  she  will  not  be  de- 
prived of  her  right  to  recover  under  the  statute.75  And  the  fact 
that  the  wife  has  upon  other  occasions  ordered  the  sale  of  liquors 
to  her  husband  is  not  a  bar  to  her  recovery  of  damages  for  a  sale 
upon  a  particular  occasion  if  she  did  not  assent  thereto.76  And 
the  giving  of  money  by  a  wife  to  her  husband,  for  the  purpose  of 
procuring  liquor  to  drink,  would  not  justify  the  inference  that  she 
contributed  to  his  intoxication,  in  the  absence  of  proof  that  he 
obtained  the  liquor  by  means  of  such  money.77  So  a  letter  from  a 
woman  objecting  to  sales  to  her  husband  and  stating  "  I  would 
not  object  to  an  occasional  drink,  if  he  would  drink  and  go  about 
his  business  "  is  not  a  bar  to  an  action  for  damages  caused  by  his 

73.  Gran  v.  Houston,  45  Neb.  813,       damages  in  an  action  by  a  wife  evi- 
64  N.  W.  245.  denee    may    properly    be    received    in 

That  liquors  were  furnished  to  the  mitigation  thereof  of  the  husband  and 

husband  with  the  knowledge  and  con-  wife  drinking  together.    Roth  v.  Eppy, 

sent  of  the  wife  is  held  in  a  later  case  80  111.  283. 

in  Nebraska  to  be  no  defence  to   an  75.  Greener  v.  Williams  (Ind.  A.  C. 

action  by  her   it  being  declared   that  1909),  89  N.  E.  377. 

the  question  is  no  longer  an  open  one  70.  Rafferty  v.   Buekman,  46  Iowa 

in  that  jurisdiction.     Kliment  v.  Cor-  195;    McDonald    v.    Casey,    84    Mich, 

coran,  51  Neb.  142,  70  N.  W.  910.  505,  47  N.  W.  1104. 

74.  Hackett  v.  Smelsley,  77  111.  77.  Rafferty  v.  Buekman,  46  Iowa 
109.  195. 

On  the   question  of   exemplary 


187] 


<  1\  ||,    DAMAGE    ACTS. 


549 


becoming  a  habitual  drunkard  and  can  only  be  considered  in 
mitigation  of  damages,  if  at  all.78  Again  the  fact  that  a  wife  has 
authorized  the  sale  of  liquor  to  her  husband  will  not  prevenl  her 
recovering  damages  resulting  from  injuries  received  by  her  hus- 
band at  the  hands  of  an  intoxicated  person  to  whom  the  dealer 
receiving  such  permission  has  furnished  liquors,  as  such  a  consent 
will  not  preclude  her  from  recovering  for  an  injury  resulting  from 
the  intoxication  of  another  who  caused  the  injury  to  her  hus- 
band.79 

§  487.  Action  by  widow — death  of  husband. 

A  widow  may  recover  for  loss  of  support  caused  by  the  death 
of  her  husband  as  a  result  of  intoxication  where  death  follows  in 
consequence  of  some  physical  injury  or  disease  of  which  the  in- 
toxication was  the  proximate  cause.80     Under  a  statute  giving  a 


78.  Earp  v.  Lilly,  217  111.  582,  75 
N.  E.  552,  citing  Hackett  v.  Smelsley, 
77  111.  109. 

79.  Thomas  v.  Dansby,  74  Mich. 
398,  41   X.  W.   1088. 

80.  Illinois—  Smith  v.  People,  141 
111.  447.  31  X.  E.  425;  Flynn  v.  Fog- 
arty,  106  111.  2G3. 

Indiana. — MrCarty  v.  State,  162 
Ind.  218,  70  X.  E.   131. 

Imni.— Rafferty  v.  Buckman,  46 
Iowa  195. 

Nebraska. — Schiek  v.  Sanders,  53 
Neb.  664,  74  X.  W.  39. 

South  Dakota. — Garrigan  v.  Ken- 
nedy. 1!»  S.  1).  11.  101  X.  W.  1081  : 
Garrigan  v.  Thompson,  17  S.  D.  132, 
95  X.  \Y.  294;  Stafford  v.  Levinger, 
16  S.  D.  118.  91  X.  \V.  462,  L02  Am. 
St.  Rep.  686. 

Compare  Davis  v.  Justice,  31  Ohio 
St.  359,  27  Am.  Rep.  514. 

This  doctrine  is  affirmed  in  a  lead- 
ing case  decided  by  the  New  York 
Court  of  Appeals.  Mead  v.  Stratton, 
87  X.  Y.  403.  41  Am.  Rep.  386.  The 
court  said  in  this  case:     "  The  statute 


cited  provides  for  a  recovery  by  action 
for  injuries  to  person  or  property,  or 
means  of  support,  without  any  re- 
strictions whatever.  Both  direct  and 
consequential  injuries  are  included. 
and  it  was  evidently  intended  to 
create  a  cause  of  action  unknown  to 
the  common  law,  and  a  new  ground 
and  right  of  action.  Volans  v.  i 
7  4  X.  V.  526,  3d  Am.  Rep.  337;  The 
injury  to  the  means  of  support  was 
one  of  the  main  grounds  of  the 
and  when  the  party  is  deprived  of  the 
usual  means  of  maintenance,  which 
he  or  she  was  accustomed  to  enjoy 
previously,  by  or  in  consequence  of 
the  intoxication  or  the  acts  of  the 
person  intoxicated,  lie  action  can  he 
maintained.  Id.  It  is  evident  that 
the  Legislature  intended  to  go  in  such 
a  case  far  beyond  any  thing  known 
to  the  common  law,  and  to  provide  a 
remedy  for  injuries  occasioned  by  one 
who  was  instrumental  in  producing, 
or  who  caused  Buch  intoxication. 
While  a  statute  of  this  character 
should  not  be  enlarged,  it  should  be 


550  CIVIL    DAMAGE    ACTS.  [§   487 

right  of  action  to  a  wife  for  loss  of  means  of  support  it  is  suf- 


interpreted,  where  the  language  is 
clear  and  explicit  according  to  its  true 
intent  and  meaning,  having  in  view 
the  evil  to  be  remedied  and  the  object 
to  be  attained.  The  evident  object 
was  to  suppress  the  sale  and  use  of 
intoxicating  liquors,  and  to  punish 
those  who,  in  any  form  furnish  means 
of  intoxication  by  making  them  liable 
for  damages  which  might  arise,  which 
were  caused  by  the  parties  who  fur- 
nished such  means.  If  the  injury 
which  had  resulted  to  the  deceased  in 
consequence  of  his  intoxication  had 
disabled  him  for  life,  or  to  such  an 
extent  as  to  incapacitate  him  for 
labor  and  for  earning  a  support  for 
his  family,  it  would  no  doubt  be  em- 
braced within  the  meaning  and  intent 
of  the  statute.  That  death  ensued  in 
consequence  thereof  furnishes  much 
stronger  ground  for  a  claim  for  a  loss 
of  means  of  support,  and  a  different 
rule  in  the  latter  case  would  make 
provision  for  the  lesser  and  tempor- 
ary injury,  while  that  which  was 
greatest  and  most  serious  would  be 
without  any  remedy  or  means  of  re- 
dress. Such  could  not  have  been  the 
intention  of  the  law-makers,  and  the 
statute  was  designed  to  embrace  and 
most  manifestly  cover  and  include  all 
in  juries  produced  by  the  intoxication, 
and  which  legitimately  result  the 
same.  If  it  is  an  injury  which  can 
be  repaired  by  damages,  as  that  aris- 
ing from  a  temporary  disability,  or 
one  where  death   comes  I  ural 

and  legitimat  of  the  in- 

ication,  a  case  is  made  out  within 
the  statute  which  entitles  the  injured 
party  to  recover  such  damages.  The 
argument  that  in  this  ease  it  was 

not  the  natural  and 
proximal  of  the  act  of  the  de- 

cant, would  apply  with  equal  force 
if    death    had   not    followed,    and    we 


think  has  no  point  under  the  peculiar 
circumstances  of  this  case.  There  are 
some  decisions  in  the  Supreme  Court 
of  this  State  which  bear  upon  the  sub- 
ject. In  Hayes  v.  Phelan,  4  Hun  733, 
the  opinion  holds  that  the  statute 
gave  a  right  of  action  only  in  cases 
where  it  lies  against  intoxicated  per- 
son. This  conclusion  does  not,  how- 
ever, appear  to  have  been  sustained  by 
a  majority  of  the  judges  constituting 
the  General  Term,  and  in  a  note  to 
Dubois  v.  Miller,  5  Hun  335,  an  opin- 
ion of  James,  J.,  is  published  dissent- 
ing from  the  views  expressed  in 
Hayes  v.  Phelan,  and  it  is  stated 
that  Boardman,  J.,  concurred  only  in 
the  result  arrived  at  in  the  decision, 
and  only  two  justices  were  present. 
In  Brookmire  v.  Monaghan,  15  Hun 
16,  where  the  complaint  asked  dam- 
ages only  by  reason  of  the  death  of 
plaintiff's  husband  which  it  was  al- 
leged was  caused  by  intoxication  by 
liquor  sold  the  deceased  by  the  de- 
fendant it  was  held  that  the  com- 
plaint did  not  state  a  cause  of  action 
under  the  Civil  Damage  Act,  and  it 
was  said  that  the  court  had  hereto- 
fore decided  in  Hayes  v.  Phelan  that 
such  damages  are  not  recoverable 
under  the  act  of  1873.  The  same 
question  arose  in  the  fourth  judi- 
cial department  in  Jackson  v.  Brook- 
ins,  5  Hun  530,  and  it  was  there 
held  that  where  several  persons  be- 
came intoxicated  and  engaged  in  an 
affray  in  which  one  is  killed,  his  wid- 
ow may  maintain  an  action  against 
the  person  who  sold  the  liquor  which 
-ed  the  intoxication,  to  recover 
damages  sustained  by  her  for  the 
death  of  the  husband.  The  same  doc- 
trine is  upheld  in  Smith  v.  Reynolds, 
8  Hun  12S.  Tn  Quain  v.  Russell,  Id. 
319,  in  the  third  depai 
held  by  a  majority  of  the  court,  that 


§    1ST]  CIVIL    DAMAGE    ACTS.  .-.-,1 

ficicnt  that  she  was  a  wife  a1  the  time  of  the  injury,  and  it  La  not 


it  was  not  essential  to  1h<>  existence 
of  the  cause  of  action  under  the  Civil 
Damage  Act,  againsl  tin-  vendor  of 
liquors,  thai  an  action  Bhould  also  be 
maintainable  against  the  intoxh  ated 
person  and  it  is  sufficient  if  the  wife 
has  been  injured  in  her  means  of  sup- 
port through  the  intoxication  of  the 
husband.  The  case  of  Hayes  v. 
Phelan  is  referred  to,  and  it  is  said 
that  no  such  principle  as  is  claimed 
in  the  last  case  was  decided  by  the 
court.  It  will  thus  be  seen  that  the 
decisions  of  the  Supreme  Court  in  this 
State  are  not  entirely  harmonious. 
In  the  State  of  Illinois  it  is  held  that 
the  action  will  lie  when  death  ensues. 
See  Schroeder  v.  Crawford,  94  111. 
357,  34  Am.  Rep.  236.  Hackett  v. 
Smelsley,  77  111.  109.  The  same  rule 
is  upheld  in  Nebraska  (Roose  v.  Per- 
kins, 9  Neb.  304,  2  N.  W.  715,  31 
Am.  Rep.  409),  and  in  the  State 
of  Iowa  Rafferty  v.  Buckman,  4G 
[owa  195.  Some  exceptions  are  made 
by  the  courls  of  Illinois  when  the 
person  intoxicated  is  killed  in  an 
affray,  or  when  death  results  from 
exposure.  Shugart  v.  Kuan,  83  111. 
56,  25  Am.  Rep.  359;  Schmidt  v. 
Mitchell,  84  111.  195,  25  Am.  Rep. 
1  16.  It  is  not  necessary  to  de- 
•  whether  these  decisions  arc  based 
on  a  sound  principle,  as  no  such 
question  arises  in  the  case  al  bar. 
t  ses  are  also  cited  from  Indiana 
which  are  claimed  to  be  adverse  to 
the  views  expressi  d.  See  Kxach  v. 
Beilman,  53  fnd.  517:  ('oilier  v. 
Karly.  54  Id.  n.-)!):  Backes  v.  Dant,  55 
Id.  181.  In  Krach  v.  Heilman,  53 
Ind.  517.  the  person  intoxicated  was 
killed  in  an  affray.  The  last  two 
cases  cited  are  somewhat  analogous  t'> 

the  case  at  liar,  hut  the  decision  of 
the  court  is  not.  we  think,  well  sup- 
ported in  either  of  them.     It   is  also 


held  in  Ohio,  that  under  the  act  in 
that  State  in  relation  to  the  sale  of 
intoxicating  liquors  for  injury  to  the 
means  of  Bupporl  in  consequence  of 
intoxication  which  caused  death,  no 
recovery  of  damages  can  !><•  had. 
Davis  v.  Justice.  :;i  nhh,  St.  359,  l~ 
Am.  Rep.  514,  Kirchner  v.  Myers, 
35  Ohio  St.  85,  35  Am.  Hep. 
We  cannot  concur  in  Buch  an  inter- 
pretation of  the  act  in  question,  and 
for  the  reasons  already  stated  are  of 
the  opinion,  that  if  the  death  of  the 
deceased  was  a  result  necessarily  fol- 
lowing the  intoxication,  and  was  at- 
tributable to  such  intoxication,  an 
action  will  lie  to  recover  the  damages 
arising  to  the  means  of  support  of 
the  plaintiff  by  reason  thereof."  Per 
Miller,  J. 

Widow  a  "  person "  -within 
meaning  of  word  as  used  in  stat- 
ute.— Statute  givingright  of  to  a  wife 
or  other  for  injury  in  person  or  prop- 
erty or  means  of  support  or  by  reason 
of  the  intoxication  of  any  person 
gives  a  right  of  action  to  the  widow- 
as  she  must  be  considered  "  a  person." 
Brockway  v.  Patterson.  72  Mich.  122, 
40  N.  W.  192,  1    L.   R.  A.  '■  - 

Sufficiency      of      complaint. — A 
complaint    showing   thai    the    intoxi- 
cated condition  caused  by  liquor  mi- 
ldly sold  by  the  defendant's  prin- 
cipal caused  the  death  of  the  plain- 
tiff's   husband    is    sufficient    and    an 
I  her  husband  had  either 
fallen     or     v.  as     thrown     out     of     the 
'V    in    which    I 

and   does 
not  make  the  complaint   bad  because 
of  the  alternative  form,  it   being  de- 
clared  in   Buch   a    case  that    whethe 
he  was  thrown  or  had   fallen  out   of 
the     buggy    could     not     change     ' 
averred   fact    that   he  received   in': 
and  that  they  were  caused  by  the  use 


552  CIVIL    DAMAGE    ACTS.  [§   4SS 

necessary  that  she  be  a  wife  at  the  time  of  bringing  the  action,81 
as  the  death  of  the  husband  does  not  terminate  the  right  of  action 
which  a  wife  may  have.82  So  a  widow  may  recover  for  loss  of  sup- 
port resulting  from  the  death  of  her  husband  who  was  killed 
while  crossing  car  tracks  in  an  intoxicated  condition,  the  intoxica- 
tion being  regarded  as  the  proximate  cause  of  the  death.83  And 
where  the  plaintiff's  husband  committed  suicide  the  fact  that  he 
was  sober  at  the  time  is  held  to  be  immaterial  if  the  suicide  was 
the  result  of  previous  intoxication  from  liquors  sold  him  by  de- 
fendant.84 In  Massachusetts,  however,  it  has  been  decided  that 
under  the  statute  of  1879  a  wife  cannot  recover  for  the  death  of 
her  husband  caused  by  his  intoxication  as  a  result  of  liquors  fur- 
nished to  him  by  another;  there  being  no  right  of  action  for 
damages  in  that  state  for  damages  occasioned  by  causing  the  death 
of  another.85  And  in  Ohio  under  the  act  of  1870  in  an  action  for 
injury  to  means  of  support  in  consequence  of  intoxication  which 
caused  the  death  of  the  intoxicated  person  damages  resulting  from 
the  death  were  not  allowed,  the  loss  to  means  of  support  being 
terminated  by  the  death  of  the  husband.86 

§  488.  Action  by  widow — death  of  husband  continued. 

That  a  husband  failed  to  support  his  wife  is  no  defense  to  an 

of  liquor  illegally  sold.  American  finding  of  whisky  bottles  on  it.  Ben- 
Surety  Co.  v.  State  ex  rel.  Holtman  nett  v.  Miller's  Estate  (Mich.  1910), 
find.' A.  C.   1909),  90  N.  E.  99.  125  N.  W.  2. 

Evidence  of  the  habits  of  the  81.  Hackett  v.  Smelsley,  77  111.  109. 

deceased  is  admissible  in  an  action  S3.  Gardner    v.    Day,    95    Me.    558, 

by    the    widow,    such    evidence    being  50  Atl.  892 ;  Roose  v.  Perkins,  9  Neb. 

competent  for  the  purpose  of  showing  304.  2  N.  W.  715,  31  Am.  Rep.  409; 

that  he  was   a   man   in   the  habit  of  Schneider  v.  Hosier,  21   Ohio  St.  98. 

getting  intoxicated  and  that  the  sale  83.  Schroder    v.    Crawford,    94    111. 

to  him  was  therefore  illegal.     Sisson  357,  34  Am.  Rep.  236  n. 

v.  Lampert   (Mich.  1910),  124  N.  W.  84.  Garrigan  v.  Kennedy,  19  S.  D. 

512.  11,  101  N.  W.  1081. 

Evidence     is     admissible     of     the  85.  Barrett    v.    Dolan,    130    Mass. 

condition  of  the  body  when  found  and  306,    39    Am.    Rep.    456,    followed   in 

of    other    circumstances    such    as    the  Harrington    v.    McKillop,    132    Mass. 

odor  of  whisky  on  the  body  and  the  567. 

86.  Kirchner  v.  Myers,  35  Ohio  St. 


§§  489,490]  CIVIL    DAMAGE    ACTS.  553 

action  on  the  bond  for  his  death  resulting  from  unlawful  .-ales  to 
him,  since  he  is  under  the  legal  obligation  to  support  her.87  And 
in  estimating  a  wife's  damages  for  the  death  of  her  husband  her 
right  to  presenl  as  well  as  future  support  should  be  considered.88 
Where  injury  to  the  means  of  support  of  a  wife  is  Bhown  by  the 
death  of  her  husband  an  accurate  account  need  not  necessarily  be 
given  of  the  contributions  of  which  the  injury  deprived  her  it 
being  sufficient  to  give  evidence  from  which  the  extent  of  the  in- 
jury may  be  approximately  ascertained.89  But  in  an  action  for 
injury  to  means  of  support  caused  by  the  death  of  the  husband  it 
is  proper  as  bearing  upon  the  extent  of  the  injury  to  show  the  re- 
marriage of  the  plaintiff.90 

§  489.  Action  by  widow — husband  killed  by  intoxicated  person. 
In  some  states  under  the  statutes  in  force  a  person  injured  in  his 
or  her  means  of  support  by  the  death  of  another  killed  by  an  in- 
toxicated person  may  recover  damages  therefor  from  the  seller  of 
the  liquor.91  So  a  widow  is  entitled  to  recover  for  injury  to  her 
means  of  support  as  a  result  of  the  death  of  her  husband  caused  by 
the  act  of  another  while  in  an  intoxicated  condition  and  due 
thereto.92  But  in  an  action  by  a  widow  a  finding  for  the  defend- 
ant may  be  justified  where  even  though  it  appears  that  the  deceased 
was  killed  by  a  person  while  intoxicated  it  also  appears  that  the 
deceased  first  assaulted  the  intoxicated  person.93 

§  490.  Action  by  wife— exemplary  damages. 

In  an  action  by  a  wife  exemplary  damages  may  in  a  proper  case 

85,  35  Am.  Rep.  50S.  following  Davis  91.  Munz    v.    People,    90    111.    App. 

v.  Justice,  31  Ohio  SI.  359.  047:  Brockway  v.  Patterson.  72  Midi. 

87.  Knott    v.    Peterson,    125    Iowa  122,  40  X.  \Y.   192,   1    L.   P.   A.  708; 
404,  101  N.  W.  173.  Jackson  v.  Brookins,  5  Hun    (X.  Y.) 

88.  Rafferty  v.   Bucknian,   40  Iowa  530. 

195.  M.   Scotl    v.  Cliope.  33  Neb.  41.  49 

89.  Lafler  v.  Fisher,   121  Mich.  00,       X.  W.  940. 

79  X.  W.  934.  !,::-  Reisch   v.   People,  229  111.  574, 

»0.  Sharpley  v.  Brown,  43  Hun  (X.      82   X.   E.   321. 
Y.)   374. 


554  CIVIL    DAMAGE    ACTS.  [§   491 

be  awarded.94  So  the  fact  that  notice  had  been  given  by  a  wife  to 
a  liquor  seller  not  to  furnish  liquors  to  her  husband  is  an  element 
to  be  considered  in  estimating  such  damages  as  it  has  a  tendency 
to  show  a  wilful  disregard  of  the  wife's  rights,95  and  may  be  con- 
sidered upon  the  question  of  exemplary  damages.96  So  evidence 
that  the  defendant  sold  intoxicating  liquors  to  a  person  who  was 
in  the  habit  of  being  intoxicated,  after  notice  from  the  wife  not  to 
sell,  and  that  he  sold  intoxicating  liquors  to  such  person  while 
in  a  state  of  intoxication  are  grounds  for  exemplary  damages.97 
And  it  is  error  to  exclude  the  question  of  exemplary  damages  from 
the  jury  where  there  is  some  evidence  tending  to  show  that  the 
sales  were  made  against  the  wife's  remonstrances.98  So  where  it  is 
shown  that  the  defendant  sold  liquor  to  a  man  against  the  repeated 
protests  of  his  wife  and  under  circumstances  advising  him  of  the 
impoverished  condition  of  the  family  punitive  damages  are  prop- 
erly awarded.99  And  upon  the  question  of  exemplary  damages 
evidence  is  properly  admissible  of  the  fact  that  sales  were  made  by 
the  defendant  to  the  husband  after  the  action  by  her  was  com- 
menced.1 

§  491.  Means  of  support  of  mother — sale  to  son. 

A  mother  who  is  a  widow  is  an  "  aggrieved  "  party  where  she  is 
injured  by  the  sale  of  liquors  to  her  adult  son  and  thus  deprived  of 
her  means  of  support ;  though  he  is  not  legally  bound  to  support 


»4.  Thill  v.  Pohlman,  70  Iowa  038,  Kirschgessner,  73  Mich.  270,  41  N.  W. 

41   X.   W.   385;   Miller  v.  Gleason,  18  488. 

Ohio  C.  C.  374.  »«•  Siegle  v.  Rush,  173  111.  559,  50 

Actual        damages       must       be  X.  E.  1008. 

proved. — Meidel    v.    Anthis,    71    111.  97»  Joekers   v.    Bergman,    29    Kan. 

241.  109,  44  Am.  Rep.  025. 

In  South  Dakota  it  has  been  de-  »8«  Gansley    v.    Terkins,    30    Mich, 

cided  that  a  widow  is  not  entitled  to  492. 

iplary     damages.       Garrigan     v.  J>!>-  ITanewacker  v.  Ferman,  47  111. 

Thompson,  17  S.  D.  132,  95  X.  W.  204.  App.  17.     See  also  Wolfe  v.  Johnson, 

95.  Rouse  v.  Melsheimer,  82  Mich.  152  111.  280,  38  X.  E.  886. 

172,    40    X.    W.     372;     Larzelere    v.  1.  Bean  v.  Green,  33  Ohio  St.  444. 


§   492]  CIVIL    DAMAGE    ACTS. 

In  p.2  And  plaintiff  in  an  action  for  selling  intoxicating  liquore  to 
her  son  may  show  her  situation  and  condition,  her  dependence  on 
him,  the  amount  earned  by  him  before  he  became  addicted  to  the 

use  of  liquor,  bis  failure  to  obtain  employment  afterwards,  if 
traceable  to  his  drinking  habit,  and  thai  he  was  last  seen  upon  the 
street  in  a  state  of  intoxication  during  the  time  defendanl  i- 
claimed  to  have  .sold  him  liquor.3 

§  492.  Action  by  mother  in  behalf  of  her  and  children — joint 
acticn. 
A  married  woman  and  her  minor  children  constituting  i 
family  may  join  in  an  action  for  damages  to  their  means  of  sup- 
port caused  by  the  intoxication  of  the  husband  and  father.4  And 
where  a  wife  sues  in  behalf  of  herself  and  her  minor  children  she 
may  recover  compensation  for  both  her  and  their  loss.5  As  tend- 
ing to  show  the  injury  to  the  means  of  support  of  a  wife  and  chil- 
dren it  is  proper  to  admit  evidence  as  to  the  amount  necessary  to 
support  the  family  in  ordinary  comfortable  circumstances,  suit- 
able for  people  in  their  condition.6  And  in  a  suit  by  a  married 
woman  in  behalf  of  herself  and  minor  children  under  the  Ne- 
braska statute  for  damages  due  to  the  incapacitation  of  the  hus- 


2.  Coughtry    v.    Eaupt,    47       Tex.  Washington   giving   a    right   of  ac- 

Civ.  App.  452>     105  S.  W.  516.     See  tion  to  a  widow  and  children  ii   has 

also   Mci  lay  v.  Worrall,   is  Neb.  45,  boon   decided    thai    they   cannot    join. 

24   X.  \\ .   129.  Delfel   v.   Hanson,   2    Wash.    194,   26 

:?.  Weiser  v.  Welch,  112  Mich.  134,  Pac.  220. 

7n   X.   W.    138,  citing  Horn  v.  Smith,  A   mother    cannot   compromise 

77  ill.  381.  an  action  brought  l>y  her  in  her  own 

-*.  Helmuth  v.  Bell,  150  111.  263,  37  behalf  and  that  of  her  minor  children 

X.    E.   230;    Wall    v.    State,    10    End.  bo  as  to  affect  the  rights  of  the  1 

App.    530,    38    X.    E.    190;    Jones    v.  without  the  authority  and  approval  of 

Bates,  26  Neb.  693,  42  X.  \Y.  751,  4  the    court.      Zimmerman    v.    Smiley, 

L.  R.  A.    195;   Wardell  v.  McConnell,  62  Neb.  204,  86  X.  W.  1059. 

23  Nob.  152,  ."in  X.  W.  278.;  Kerkow  •"•  Rosecrants     v.     Shoemaker,     60 

v.  Bauer,  15  Neb.  150,  18  X.  \V.  27:  Mich.  4,  26  X.  W.  794. 

Roose  v.   Perkins,    9    Neb.    304,   2   X'.  6.  Warrick  v.  Round-.  17  Neb.  411, 

W.  715,  31   Am.  Rep.  409.  22  X.  \Y. 

Under     a     code     provision     in 


556  CIVIL    DAMAGE    ACTS.  [§   493 

band  and  father,  the  gist  of  the  action  is  the  loss  of  means  of 
support  and  not  any  personal  injuries  he  may  have  suffered  as  a 
r  suit  of  the  intoxication.7  In  such  an  action  by  a  widow  in  be- 
half  of  herself  and  her  minor  child  the  measure  of  damages  is  the 
present  value  of  the  sum  the  deceased  would  probably  have  con- 
tributed to  the  support  of  his  wife  during  the  period  of  their  joint 
expectancy  of  life  and  the  amount  he  would  probably  have  con- 
tributed to  the  support  of  the  child  during  her  dependency,  the 
same  being  less  than  the  deceased's  expectancy.8  And  in  an  action 
by  a  widow  and  children  evidence  that  the  deceased  in  his  life- 
time accumulated  property  which,  upon  his  death,  went  to  the 
plaintiffs,  should  not  be  considered  in  mitigation  of  damages  but 
should  rather  go  to  enhance  them.9  The  words  "  all  damages  "  in 
such  an  act,  are  held  to  include  the  loss  of  means  of  support  of  a 
wife  and  the  children  of  the  husband  who  by  reason  of  liquors 
furnished  him  becomes  unable — either  partially  or  totally — to 
labor.10  Under  a  statute  in  Kansas  it  is  decided  that  children 
injured  in  their  means  of  support  by  reason  of  the  intoxication  of 
their  father  cannot  maintain  a  joint  action.11 

§  493.  Means  of  support — action  by  children. 

Under  a  statute  giving  a  right  of  action  to  children  or  to  persons 
generally  who  are  injured  in  their  means  of  support,  minor  chil- 
dren who  are  deprived  of  their  support  by  the  intoxication  of  their 
father  rendering  him  incapable  of  providing  for  them  may  recover 

7.  Nelson  v.  Nevels,   79  Neb.  699,  tender  age  as  to  render  them  entirely 

113  X.  W.   1H).  dependent  upon  their  parents  for  sup- 
s' Young    v.     Beveridge,     81     Neb.  port.     Kerkow  v.  Bauer,  15  Neb.  150, 

180.   115  N.  W.   700.  18  N.  W.  27. 

In    an    action    by    the    widow    and  »•  Houston   v.   Gran,   38   Neb.   687, 

children  it  is  competent  to  prove  the  57  N.  W.  403. 

physical   condition   and  health   of  the  !<>•  Gran  v.  Houston,  45  Neb.  813, 

deceased,  his   habits  of  industry,  his  64  N.  W.  245. 

avocation,  the  monthly  or  annual  pro-  11.  Durein    v.    Pontious,    34    Kan. 

duct   of   the   same,   and   whether   any  353. 

and   all   of  the   children   are  of   such 


§  494]  civil   I).\.ma<;k  acts.  557 

therefor.12  In  an  action  by  minor  children  to  recover  for  loss  due 
to  the  accidental  killing  of  their  father  while  intoxicated  it  is 
proper  to  show  that  he  was  a  man  of  industrious  habits  when 
sober  and  what  he  contributed  to  the  support  of  the  family.13 
And  the  fact  that  there  may  have  been  ;i  recovery  by  the  widow  i- 
no  bar  to  an  action  by  the  children  as  the  right  of  action  of  a  widow 
and  the  children  arc  separate  and  distinct  and  in  no  wise  depend- 
ent  upon  each  other.1 '  And  the  right  of  action  so  given  to  a  child 
is  held  to  exist  in  favor  of  a  child  who  was  born  after  the  death  of 
his  father  such  death  being  due  to  intoxication.15  Again  under  a 
statute  giving  a  right  of  action  to  a  child  or  any  other  persons 
injured  in  his  person  or  property  the  fact  that  a  child  may  be 
illegitimate  does  not  affect  the  right  to  recover,  and  though  the 
statute  should  not  use  the  term  "  or  any  other  person  "  there  still 
might  be  a  recovery,  where  the  father  of  the  child  is  chargeable  by 
law  with  its  support.16  And  in  Massachusetts  it  is  decided  that 
though  a  son  may  be  an  adult  yet  he  is  nevertheless  a  child  within 
the  meaning  of  a  statute  giving  such  a  right  of  action  to  a  child 
after  notice  has  been  given.17 

§  494.  Action  by  husband. 

A  husband  injured  in  consequence  of  the  intoxication  of  his 
wife  will  be  regarded  as  included  in  a  classification  of  "  other 
persons  "  as  used  in  a  statute.18     And  a  wife  may  be  a  means  of 

12.  Bloedel  v.  Zimmerman,  41  Neb.  Widow  and  children  may  sue  jointly 
695,  60  X.  W.  6.  or   severally.      Kerkow    v.    Bauer,    15 

Though   the    complaint   alleges       ^.  ,     jg0    ^  y    ^-    gy 

a  total   loss   of  support   in   an  ac-  .  .  „ 

*  .  ,,,        .  «  15.  Quinlen  r.  Welch,  69  Hun     N. 

tion  by  minor  children  to  recover  for 

the  death  of  their  fattier,  there  may  Yd    584,  23   X.  V.   Supp.  963. 

be  a   recovery   for  a    partial    Loss   of  16.  Goulding  v.  Phillips.  124  Iowa 

support.     Buck  v.  Maddock,   ItiT    111.  4;),;,  \qq  x.  \V.  516. 

219,  47  X.  E.  208.  17.  T     lor  v   Carroli    U5  M.,_    .,-.. 

IK.  Buck  v.  Madock,   167    111.   210. 

47N.E.  208.  U  V  ''    "' 

i».  Stecher  v.  People.  217  111.  348,  18'  Landram  v.  Flannigan,  60  Kan. 

75  N.  E.  501.  436,  56  Pac.  753. 


55S  CIVIL   DAMAGE   ACTS.  [§§  495,496 

support  to  her  husband  and  whether  such  relationship  exists  and 
how  far  the  means  of  support  may  be  injured  are  questions  of 
fact  to  be  determined  by  the  jury  upon  proper  instructions  from 
the  court.19  And  it  has  been  decided  that  a  husband  has  a  cause 
of  action  for  the  loss  of  society  of  his  wife  and  for  mental  anguish 
where  she  was  killed  by  a  person  while  intoxicated.20  But  where 
by  statute  of  descent  and  distribution  a  husband  does  not  inherit  his 
wife's  personal  estate  and  is  not  next  of  kin  he  cannot  maintain 
an  action  to  recover  for  his  wife's  death  under  a  statute  which 
gives  such  a  right  to  "  next  of  kin."21 

§  495.  Death  of  intoxicated  person — no  recovery  by  personal 
representatives. 
Though  a  person  may  have  died  from  the  effect  of  liquor  bought 
and  consumed  by  him,  his  personal  representative  has  no  right 
of  action  against  the  seller  for  such  death.22  And  where  a  statute 
gives  a  right  to  "  next  of  kin  "  and  a  husband  is  not  under  the 
statute  included  in  such  classification  he  cannot  recover  as  execu- 
tor of  his  wife's  estate  for  her  death  unless  it  appear  that  there  are 
next  of  kin  entitled  to  the  amount  to  be  recovered.23 

§  496.  Action  by  intoxicated  person. 

In  some  states  a  right  of  action  is  given  to  an  intoxicated  per- 
son to  recover  for  an  injury  sustained  by  him  as  a  result  of  his 
intoxication.  So  in  Pennsylvania  by  an  act  passed  in  1854  a 
right  of  action  was  given  to  the  injured  person  himself  to  recover 
for  damages  caused  by  exposure  as  the  result  of  a  sale  of  liquor 
to  him,  he  being  either  intoxicated  or  a  person  of  known  intem- 
perate habits ;  the  principle  of  volenti  non  fit  injuria  being  held 

u».  Moran   v.   Goodwin,    130   Mass.  22.  Couchman  v.  Prathor,  1G2  Ind. 

158,  39  Am.  Rep.  443.  250.  70  N.  E.  240;  Bissell  v.  Starzin- 

20.  Fortier  v.  Moore,  07  N.  H.  400,      ger,  112  Iowa  2GG,  83  N.  W.  1005. 

36  Atl.  300.  23.  Warren   v.   Englehart,   13   Neb. 

21.  Warren   v.    Englehart,   13  Neb.       283,  13  N.  W.  401. 
283,  13  N.  W.  401. 


g    197]  CIVIL    DAMAGE    A<  I  3.  559 

nol  to  be  applicable.24  In  an  action  founded  on  such  a  statute  an 
allegation  of  the  purchase  by  plaintiff  of  liquors  and  that  in 
consequence  thereof  he  became  unconscious  and  that  while  in  such 
state  his  legs  wen-  frozen  as  a  result  of  which  they  had  to  be 
amputat<  d  was  held  to  state  facts  sufficient  to  constitute  a  can-'-  of 
action.-"'  And  the  act  of  the  deceased  person  in  drinking  liquor 
is  not  contributory  negligence  precluding  a  recovery  in  favor  of 
his  estate  it  appearing  thai  while  intoxicated  the  defendant  ex- 
pelled him  from  the  saloon  thereby  causing  his  death  from  ex- 
posure.26 But  a  statute  giving  a  right  of  action  to  certain  desig- 
nated persons  "  or  other  persons  "  for  an  injury  done  by  reason  of 
the  intoxication  of  any  person  gives  no  right  of  action  to  the  in- 
toxicated person  himself  against  the  dealer  for  money  stolen  from 
him  while  drunk.27 

§  497.  Assault  by  intoxicated  person. 

A  seller  of  liquor  is  in  many  states  under  the  statutes  in  force 
liable  for  an  assault  committed  by  an  intoxicated  person  upon 
another  where  such  assault  is  committed  as  a  result  of  the  sale  of 
such  liquor.28  But  where  an  assault  was  committed  by  a  minor 
in  an  action  against  persons  with  whom  he  had  drank  and  become 
intoxicated,  for  the  damages  resulting  from  such  assault  the 
action  being  based  on  the  ground  that  the  defendants  had  paid 


24.  Littell  v.  Young,  5   Pa.  Super.  money  and  while  in  that  condition  it 
ct.  205.  was  forcibly  taken  from  him  without 

25.  Buckmaster  v.  McElroy,  20  Neb.  his  consent  he  could  not  maintain  an 
557,  31  N.  W.  76,  ">T   Am.  Rep.  843.  action  against  the  saloon  keeper  and 

86.  Weynine  v.  Wolf,  52  Iowa  533,  the  sureties  on    his   bond   to   recover 

3  N.  W.  541.  the  same,  the  sale  of  the  liquor  not 

27.  Brooks  v.  Cook,    tl   Mich.  617,  being  regarded  as  the  proximate  cause 

7  X.  \Y.  216,  38   Am.   Rep.  282.     See  of  the  injury. 

also   Gage    v.    Harvey,    66    Ark.    68,  88.  King  v.  Haley,  86  111.   106,  29 

48  S.  W.  898,  74  Am.  St.  Rep.  70,  43  Am.   Rep.    it:    English   v.   Beard,   51 

L.  R.  A.   143,  holding  that    where  a  Ind.  489;  Bodge  v.  Hughes,  53  N.  H. 

person  became  intoxicated  and  thereby  til4. 
incapacitated     to    take    care    of    his 


56q  CIVIL    DAMAGE    ACTS.  [§   497 

for  and  furnished  such  liquor  to  the  minor  it  was  held  that  the 
damages  were  too  remote  it  appearing  that  he  was  not  incited 
thereto  by  the  defendants  and  that  the  assault  was  his  own  volun- 
tary act.29 

29.  Swinfin    v.    Lowry,    37    Minn.  liquors    with    the    defendants,    or    at 

345,   34  N.   W.   22,   it  being  declared  their  expense,  as  to  be  considered  the 

that  the  assault  was  not  so  related  to  natural  and  proximate  result, 
the  fact  that  he  drank   intoxicating 


SEARCH    AND   SEIZURE    LAWS.  50] 


CHAPTER    XX. 

SEARCH  AND  SEIZURE  LAWS. 

Section  498.  Search  and  seizure  laws  generally — Constitutionally  of  generally. 

499.  Not  a  taking  of  private  property  for  public  use. 

500.  Not  invalid  as  denying  right  of  trial  by  jury. 

501.  Statutes  as  to  generally. 

502.  Particulars  statutes  construed. 

503.  Limitations  on  powers. 

504.  Limitations  on  power  and  exercise  of  continued. 

505.  Liquor  which  may  be  seized  generally. 
50G.  Liquors  in  hands  of  bailee. 

507.  Seizure  of  liquors  in  transitu — of  property  used  in  transporting. 

508.  Liquors  shipped  into  prohibited  districts — seizure  in  hands   of 

carrier. 

509.  Liquors  shipped  in  prohibited  to  territory — contract  of  sale  com- 

pleted there. 

510.  Liquor  shipped  from  another  state — Iowa. 

511.  Liquor  shipped  from  another  state — Maine. 

512.  Liquor  shipped  from  another  state — South  Carolina. 

513.  Liquor  shipped  from  another  state — Vermont. 

514.  Liquor  shipped  from  another  state — United  States. 

515.  Liquor  shipped   from  another  state — conclusion. 

516.  Seizure  of  property  in  connection  with  liquor-. 

517.  Complain!  generally. 

518.  Sworn  complaint. 

519.  Warrant  generally. 

520.  Warrant  and  complaint  in  one  instrument. 

521.  Variance  between  complaint  and  warrant. 

522.  Who  max   complain. 

523.  Alleging  probable  i 

.v.!  t.  Allegations  as  to  liquors,  kinds  and  quantities. 

525.  Allegations  as  to  intent — keeping  for  unlawful  sale. 

526.  Allegations  as  to  owner  or  keeper. 
.V27.  Description  of  place  to  be  searched. 


SEARCH    AND    SEIZURE    LAWS.  [§    493 

Section   52S.  Description  of  place  to  be  searched — continued. 

529.  Description  of  place  to  be  searched — rules  illustrated. 

530.  Time  of  service  of  warrant. 

531.  Search  and  seizure  without  warrant — generally. 

532.  Same  subject — allegations  in  complaint  and  warrant. 

533.  As  to  arrest  of  person  having  liquors  in  possession. 

534.  Arrest  without  warrant. 

535.  Effect  of  seizure  of  more  liquors  than  authorized. 

536.  Notice  of  seizure. 

537.  Claimants — effect  of  appearance — waiver  of  defects. 

538.  Power  and  liability  of  officer  serving — generally. 

539.  Power  of  officer — as  to  place  of  search. 

540.  Liability  of  officer — concluded. 

541.  Duty  of  officer  as  to  keeping  of  liquors. 

542.  Acts  of  officer  de  facto. 

543.  Officers'  returns. 

544.  Actions  to  recover  liquor  seized — replevin. 

545.  Nature  of  proceedings  for  forfeiture — proceedings  in  rem. 
54G.  Same  subject — whether  civil  or  criminal. 

547.  Proceedings  for  forfeiture  and  punishment  of  offender  separate. 

548.  No  defense  that  intent  was  that  of  agent  of  owner. 

549.  Finding  as  presumptive  evidence  of  unlawful  keeping — statutes. 

550.  Evidence  generally. 

551.  Proceedings  for  forfeiture — judgment  for. 

552.  Right  to  return  of  liquors  seized. 

§  498.  Search  and  seizure   laws   generally — constitutionalty   of 
generally. 

The  legislature  may  declare  the  possession  of  certain  articles 
of  property,  either  absolutely  or  in  particular  places  and  under  par- 
ticular  circumstances,  to  he  unlawful  because  they  would  be  in- 
jurious, dangerous  or  noxious.  And  it  may  provide  for  the  seizure 
and  confiscation  or  destruction  thereof  by  due  process  of  law.1 
So  it  is  said  :  "  Certain  articles  which  are  treated  as  property,  while 
used  for  lawful  purposes,  may  be  subjects  of  forfeiture  and  de- 
struction, under  proper  statutory  provisions,  if  their  use  is  deemed 
pernicious  to  the  best  interests  of  the  community.      And  when 

!•  Fisher      v.      McGirr,      1      Gray   (Mass.)    1,  61  Am.  Dec.  381. 


§   498]  SEARCH    AND    SEIZURE    LAWS.  :,i;;; 

articles  are  attempted  to  be  used  for  unlawful  purposes,  or  in  an 
unlawful  manner,  and  the  attempts  are  so  concealed,  thai  ordim 
diligence  fails  to  make  such  discovery  as  to  enable  the  law  to  -I'-elare 
the  forfeiture,  statutes,  authorizing  searches  and  seizures,  have 
been  held  legitimate."2  So  although  there  is  a  well  recognized 
principle  of  right  of  property  in  intoxicating  liquors  and  thai  they 
are  not  nullum  in  se  and  that  their  use  is  uo1  prohibited  by  law  to 
tin  citizens  of  the  state  yet  these  principles  are  Bubjecl  to  the  quali- 
fication that  when  kept  and  intended  for  unlawful  use  they  fall 
under  the  ban  of  the  law  and  become  subject  to  seizure  and  confis- 
cation by  snch  methods  as  are  provided  by  law  in  conformity  with 
the  constitution.3  Statutes  of  this  character  have  as  a  general  rule 
been  held  to  be  constitutional.3*  "  The  police  power  of  the  state 
concededly  extends  to  the  search,  seizure,  and  destruction  of  prop- 
erty which  is  either  the  subject  of  crime  or  the  means  of  perpetrat- 
ing it.  Now  when  intoxicating  liquors  are  kept  for  sale  in  a  pro- 
hibition district,  they  are,  with  all  implements  to  facilitate  their 
sale,  the  subject  of  crime  or  the  means  for  committing  it."  4  So  a 
statute  providing  for  the  abatement  of  nuisances  by  "seizing  and 
destroying  the  liquor  "  in  the  place  though  properly  adjudged  to  be 


-.  Gray   v.    Kimball,    42    Mc>.    299,  Intoxicating  Liquors,  172   Mass.  311, 

3(17.  per  Tenney,  C.  J.  52  X.  E.  389;  Allen  v.  Staples,  6  Gray 

3.  Stat.-    v.    O'Neil,    58    Vt.    140,    2  (Mass.)     191. 

Ail.  586,  56  Am.  Rep.  557,  per  Boyce,  Minnesota. — State    v.    Stoffels,    89 

C.  .1.  Minn.  205,  94  \.  W.  675. 

3a.  Arkansas. — Ferguson   v.  Josey,  Nebraska. — Sothman    v.    State,    60 

70  Ark.  94,  66  S.  W.  345.  Neb.  302,  92   X.   W.  303. 

Illinois. — Sf.'    Sullivan    v.    City    of  Rhode  Island. — Liquors  of  Borgan, 

Oneida,  61   111.  242.  16   R.   I.  542. 

Connecticut. — State  v.  Wheeler,  2.~>  Vermont.     State  v.  Intoxicating  Li- 
Conn.  200.  quor,   (Vt.  1909),  7::  Ail.  586;  Gill  v. 

Iowa.-    McLane  v.    Bonn,   70    Iowa  Parker,     .".1     Vt.     till':     Lincoln     v. 

752,  30  X.  W.  748;  Santo  \.  State,  2  Smith,  2::  Vt.  328. 

Iowa    165,  63  Am.   Dec.    187.  Ordinance    invalid    as    in    viola- 

Maine. — State    v.    LeClair,    86    Me.  tion  of  constitutional  rights      -  e  Sul- 

522,   30   All.    7:    State   v.    Miller,   -is  livan  v.  City  of  Oneida,  61   111.  242. 

Me.  570.  ■«•  State  v.  Stoffels,  89  Minn.  205, 

Massachusetts.— Commonwealth     v.  209,  94  X.  \V.  675,  per  start .  C  •'. 


564  SEARCH    AND    SEIZURE    LAWS.  [§   499 

employed  in  cases  pending  under  a  prior  statute  providing  for  the 
abatement  of  such  nuisance  but  containing  no  provision  as  to  the 
method  of  abatement  is  not  subject  to  the  objection  that  it  is  an  ex 
post  facto  law,  it  being  declared  that  such  an  action  is  not  criminal 
in  its  character  and  that  the  acts  done  in  abating  nuisances  are  not 
done  in  punishment  of  crimes.5  And  the  fact  that  a  statute  pro- 
vides for  search  and  seizure  of  liquors  kept  for  sale  in  prohibition 
districts  does  not  render  it  class  or  special  legislation  since,  while 
the  classification  includes  all  localities  and  districts  wherein  the 
issuance  of  licenses  is  or  may  be  prohibited  by  law,  it  applies 
equally  to  all  persons  and  places  within  such  districts.6 

§  499.  Not  a  taking  of  private  property  for  public  use. 

Such  a  statute  is  not  a  violation  of  a  constitutional  provision 
that  private  property  shall  not  be  taken  for  public  use  without 
compensation  therefor.7  This  provision  of  the  constitution  as  to 
the  taking  of  private  property  for  public  use  was  not  intended  to 
apply  to  forfeiture  and  confiscation.8  So  in  an  early  case  in 
Connecticut  it  is  said :  "  Again  it  is  claimed  that  the  statute 
violates  another  clause  in  the  constitution,  which  says  that  '  the 
private  property  of  no  person  shall  be  taken  for  public  use  with- 
out compensation  therefor  ' ;  that  it  authorizes  the  taking  of  pri- 
vate property  for  the  benefit  of  the  town.  The  same  objection 
might,  with  the  same  propriety,  be  urged  against  almost  every 


■""••  McLane  v.   Bonn,   70   Iowa   752,  8.  State     v.     Snow,     3    R.     I.     04, 

30  X.  W.  478.  wherein  it  was  said:   "This  objection 

6.  State  v.   StofTels,  89  Minn.  205,  supposes  that  the  property  to  be  ad- 
!>4  X.  W.  075.  judged    forfeited    is    in    the   sense   of 

7.  State    v.    P>rennan's   Liquors,   25  that  section  taken  for  public  use.     Tt 
Conn.    278.       See    also    Kirkland    v.  is,   however,   simply   adjudged   forfeit 
State.  72  Ark.  171,  78  S.  W.  770,  105  for  the  violation  of  the  law,   and   to 
Am.  St.  Rep.  25.  tliis  extent  is  in  the  nature  of  a  pen- 
Where  liquors  are  kept  for  sale  in  alty  inflicted   upon  tiie  owner.     This 

violation  of  law  they  are  not   within  provision     of     the     constitution     was 

the  protection  <>f  the  law  and  have  no  never  supposed  to  apply  1o  forfeiture 

value.     Oviatt  v.  pond,  2!t  Conn.  479.  ami  confiscation."     Per  Brayton,  J. 


g    -||()|  SEARCH    AND    SEIZURE    LAWS.  565 

penal  statute,  as  the  law  requires  al]  fines,  forfeitures  and  penalties, 
unless  otherwise  expressly  disposed  of,  to  be  paid  into  either  the 
state  or  town  treasury.  Thus  a  person  convicted  of  the  crime  oi 
drunkenness,  is  subject  to  a  fine  payable  into  the  town  treasury. 
In  one  sense  it  may  be  said,  his  money,  if  the  fine  is  paid,  is  taken 
for  public  use  but  no1  within  the  meaning  of  that  clause  of  the 
constitution.  The  fine  is  imposed  not  because  the  public  want  his 
money,  but  as  a  punishment  for  his  offense,  and  the  disposition  of 
it  does  not  affect  the  validity  of  the  law  subjecting  him  to  the 
punishment.  So  in  the  case  under  consideration,  the  law  imposes 
the  forfeiture  of  the  liquors,  not  for  the  benefit  of  the  town,  but 
as  a  punishment  for  keeping  them  for  an  unlawful  purpose.  For- 
feitures have  frequently  been  imposed  by  law  of  Congress  as  well 
as  by  other  laws  of  this  state,  none  of  which  have  ever  been  ad- 
judged unconstitutional."  9 

§  500.  Not  invalid  as  denying  right  of  trial  by  jury. 

Such  a  provision  is  held  not  invalid  as  denying  a  right  of  trial 
by  jury.10  A  constitutional  provision  that  "  the  right  of  trial  by 
jury  shall  remain  inviolate"  is  construed  as  applying  only  to 
those  cases  at  common  law  in  which  the  issues  of  fact  were  triable 
by  a  jury  and  not  to  require  a  jury  trial  in  proceedings  under 
search  and  seizure  laws.11  So  in  a  recent  case  in  Vermont  it  is 
said  that  it  is  settled  in  that  state  that  such  proceedings  are  not 
prosecutions  for  criminal  offenses  within  the  meaning  of  the  con- 
stitutional provision  giving  a  right  to  a  trial  by  jury  in  such  prose- 
cutions but  are  only  proceeding  /'//  r<  m  to  fix  the  status  of  the 
property  and  therefore  essentially  civil  and  not  criminal.12     So  in 

n.  State  v.  TSrennan's  Liquors,  25  ing  liquor  to  be  outlawed  by  statute. 
Conn.  278,280,  287.     Per  Waite,  C.  J.  "•  Kirklan.l  v.  State,  72  Ark.  171. 

io.  Kirklan.l  v.  state.  72  Ark.  171.  78  S.  \V.  770,  105  Am.  St  Rep.  21. 
78  S.  W.  770.   105  Am.  St.  Rep.  21:  '-•  State    v.    Intoxicating    Liquors 

Sothman    v.    State,   66    Neb.    302,   92  (Vt.  1909),  7:;  Ail.  :.st;.  citing  state 

N.  W.  303.    See  state  v.  [ntoxicating  v.  [ntoxicting  Liquor,  55  Yt.  82. 
Liquor,  55  Yt.  s^.  holding  intoxicat- 


566  SEARCH    AND    SEIZURE    LAWS.  r^    59] 

an  early  case  in  Connecticut  it  is  decided  that  a  provision  of  a 
statute  that  a  justice  if  he  shall  find  that  the  liquor  was  kept  in 
violation  of  the  act,  shall  render  judgment  that  the  liquor  and  the 
vessels  which  contained  it  shall  be  forfeited  is  not,  by  giving  a 
justice  jurisdiction  to  an  unlimited  amount  repugnant  to  the 
constitution  of  the  state  as  impairing  the  right  of  trial  by  jury,  the 
right  of  appeal  being  allowed  to  the  claimant  in  every  case.13  And 
it  is  declared  in  a  late  case  in  Indiana  that  due  process  of  law  does 
not  mean  a  trial  by  jury  but  only  requires  that  provision  shall  be 
made  for  notice  in  some  form  and  an  opportunity  to  be  heard  be- 
fore some  tribunal,  not  necessarily  an"  organized  court  or  before  a 
jury.14  Again  it  has  been  decided  that  a  statutory  provision  "  that 
any  person  on  whose  premises  or  in  whose  custody  any  such  liquor 
may  be  found  under  warrant  of  this  act  shall  be  entitled  to  his  day 
in  court  before  said  property  shall  be  destroyed  "  did  not  contem- 
plate a  trial  by  jury  in  a  proceeding  under  the  act.15  And  prose- 
cutions of  this  character  are  not  actions  for  the  recovery  of  money 
or  of  specific  real  or  personal  property  within  the  meaning  of  a 
code  provision  as  to  trial  by  jury  in  such  cases.16 

§  501.  Statutes  as  to  generally 

Such  a  statute  should  give  an  opportunity  to  the  party  accused 
to  defend  his  property,  provide  for  notice  to  him  of  the  seizure  and 
for  some  means  of  informing  him  when,  where  and  before  whom 
the  search  warrant  is  returned.17  The  search,  seizure  and  confisca- 
tion provisions  of  such  a  statute  will  generally,  in  the  absence  of 


13.  State  v.   Breman's   Liquors,  25  Kelley  v.   Pittsburgh,    104   U.    S.    78, 
Conn.  278.  20  L.  Ed.  058;   Weimer  v.  Bunbury, 

14.  Campbell  v.  State,    (Ind.   S.  C.  30  Mich.  20. 

1909),  87  N.  E.  212,  citing  Cleveland  15.  Kirkland  v.  State,  72  Ark.  171, 

R.  Co.  v.  Backus,  133  Ind.  513,  33  N.  78  S.  W.  770. 

E.  421,  18  L.  R.  A.  729;  Hovey  v.  El-  1«.  Sothnian  v.  State,  GO  Neb.  302, 

liott,  107  U.  S.  409,  17  Sup.  Ct.  841,  92  N.  W.  303. 

42    L.    Ed.    215;    Springer   v.    United  17.  Hibbard  v.  People,  4  Mich.  125. 

States,  102  U.  S.  580,  20  L.  Ed.  253;  126. 


§   502]  SEARCH    AND    SEIZURE    LAWS.  567 

anything  therein  to  the  contrary,  be  regarded  as  aimed  al  the 
present  condition  of  the  liquors  and  the  presenl  intenl  of  the 
keeper  and  not  that  of  the  past.18  And  where  under  the  statute  in 
force  a  search  an< I  seizure  process  has  been  instituted  it  will  no1  be 

affected  by  a  statute  subsequently  passed  accident  ally  repealing 
a  part  of  the  statute  as  to  the  unlawful  keeping  "1"  liq  u 
prohibited,  there  still  being  a  statute  in  force  as  to  unlawful  selling 
and  a  constitutional  provision  prohibiting  the  sale  and  keepi] 

§  502.  Particular  statutes  construed. 

It  is  no  valid  objection  to  the  constitutionality  of  an  act  that 
a  defendant,  before  appeal  is  allowed,  is  required  to  give  bond  to 
prosecute  his  appeal  to  effect,  in  such  amount  as  the  justice  may 
order,  and  that  the  justice  has  power  to  prevent  an  appeal  by 
requiring  a  bond  of  an  exorbitant  amount,  inasmuch  as  it  is  not 
to  be  supposed  that  any  abuse  of  authority  is  to  be  practiced, 
especially  where  the  bond  is  required  only  to  secure  the  payment 
of  costs.20  And  a  statute  providing  for  an  appeal  only  if  taken 
immediately  upon  judgment  of  forfeiture  and  to  be  accompanied 
by  a  recognizance  with  sureties  in  a  specified  sum  to  prosecute  the 
appeal  has  been  held  not  to  be  unconstitutional  because  no  time 
was  given  to  procure  sureties  and  perfect  the  recognizance  or 
because  the  amount  of  the  recognizance  was  fixed  by  the  legis- 
lature, it  not  being  clearly  exorbitant.21  But  a  statute  which  pro- 
vides for  the  destruction  of  the  property  seized  and  the  punish- 
ment of  its  owner  or  keeper  without  his  being  duly  charged  with 
any  offense,  or  being  summoned,  (unless  known  to  the  officer)  to 
appear  before  the  magistrate,  and  which  gives  him  no  opportunity 
to  defend  and  meet  the  witnesses  againsl  him  face  to  face  and  con- 


is.  Stato  v.    Intoxicating   Liquors,  -°-  State  v.  Brennan's  Liquors,  25 

85  Me.  304,  27  Atl.  178,  citing  State      Conn.  278. 

v.    Hawley,  65    Me.     100;     Slat,-    v.  ai<  fu   ?v  TW  L-  nf  McSoley 

Dunphy,  7!'  Me.  104.  8  Atl.  344. 

-«    X  ^       ,  ii     r>o    >r       i™        15  R.  I.  008.  10  Atl.  (.>.•)!>. 

to.  State  v.  Dowdell,  98   Me.  460, 

57  Atl.  840. 


568 


SEARCH    AND    SEIZURE    LAWS. 


[§  503 


tains  no  provisions  for  legal  proof  and  trial  of  the  offence  of  keep- 
ing the  liquors  with  intent  to  sell  has  been  held  unconstitutional.22 
And  a  constitutional  provision  against  unreasonable  searches  and 
seizures  is  violated  by  a  statute  which  requires  neither  the  name 
of  any  person,  keeping  or  depositing  the  liquors  with  intent  to  sell, 
to  be  named  in  the  complaint  or  the  search  warrant  for  the  liquors 
and  which  does  not  limit  the  authority  of  the  officers  to  the  liquors 
described  in  the  complaint,  nor  to  those  intended  for  sale  but 
which  directs  him  to  seize  any  liquors  found  in  the  place  described 
in  the  complaint.23 

§  503.  Limitations  on  powers. 

While  the  right  to  enact  statutes  of  this  character  has  been 
generally  recognized,  yet  such  power  must  be  exercised  in  con- 
formity to  the  provisions  of  the  constitution  and  the  rights  of  the 
individual  secured  thereby  in  respect  to  his  person  and  property 
and  in  regard  to  unreasonable  searches  and  seizures.  The  legis- 
lature in  enacting  measures  of  this  character  must  act,  having  in 
view  the  limitations  imposed  by  the  constitution.24  So  it  has  been 
said  that,  "  The  exercise  of  this  power  must  be  properly  guarded, 
that  abuses  may  be  prevented,  and  that  a  citizen  shall  not  be  de- 
prived of  his  property,  without  having  an  accusation  against  him, 
setting  out  the  value  and  charge  thereof,  but  by  the  judgment  of 


22.  Fisher  v.  McGirr,  1  Gray 
(Mass.)    1,  01  Am.  Dec.  381. 

23.  Fisher  v.  McGirr,  1  Gray 
(Mass.)    1:  01  Am.  Dec.  381. 

24.  Dupree  v.  State,  (Tex.  S.  C. 
1909),  119  S.  W.  301. 

An  ordinance  which  attempted 
to  prohibit  the  keeping  of  any  in- 
toxicating liquors  or  beverages  in  any 
Louse,  building  or  place  where  people 
resort,  public  or  private,  for  lawful 
or  unlawful  purposes,  and  then  pro- 
vided for  the  seizure  and  confisca- 
tion of  such  liquors  and  for  the  ar- 


rest of  any  and  all  persons  suspected 
of  violating  such  ordinance  with  or 
without  a  warrant  was  held  to  vio- 
late a  provision  of  the  bill  of  rights 
securing  the  people  in  their  persons, 
houses,  papers  and  possessions  from 
imreasonable  searches  or  seizures 
and  providing  that  no  warrant  shall 
issue  to  search  any  place  or  to  seize 
any  person  or  thing  without  probable 
cause,  supported  by  oath  or  affirm- 
ation. City  of  Bessemer  v.  Eidge 
(Ala.  S.  C.  1909),  50  So.  270. 


§§   504,505]  SEARCH    AND    SEIZURE    LAWS.  539 

his  peers,  or  the  law  of  the  Land;  and  he  shall  be  secure  in  hie 
person,  houses,  papers  and  possessions,  from  unreasonable  searches 
ami  seizures."25  And  such  provisions  have  always  been  upheld 
where  they  have  observed  the  guaranteed  rights  of  persons  and 
property  in  providing  notices  of  the  seizure  of  the  property,  the 
means  by  which  the  owner  is  to  be  informed,  when  and  where,  and 
before  whom  the  warranl  is  to  1"'  returned  and  have  afforded  him 
an  opportunity  to  defend  his  property.20 

§  504.  Limitations  on  power  and  exercise  of  continued. 

"Where  the  constitution  of  a  state  provides  for  searches  and 
seizures  only  upon  a  warrant,  the  legislature  cannot  only  au- 
thorize a  search  and  seizure  in  accordance  therewith.27  So  where 
the  constitution  prohibits  the  issuance  of  warrants  of  search  or 
seizure  of  persons  or  property,  except  on  a  sworn  showing  and 
which  is  construed  as  meaning  that  it  must  be  of  facts  on  personal 
knowledge  such  as  would  establish  the  legal  probability  of  the 
cause  of  complaint,  the  legislature  has  no  power  to  provide  for 
searches  and  seizures  without  warrant.28  And  such  a  proceeding 
must  be  instituted  in  accordance  with  the  terms  of  the  statute 
and  before  the  magistrate  designated  thereby.29  And  where  the 
statute  provides  only  for  the  seizure  of  liquors  unlawfully  kept  in 
any  "  place,"  there  is  no  authorization  for  the  seizure  of  liquors 
from  the  person.30 

§  505.  Liquor  which  may  be  seized  generally. 

The  object  of  these  statutes  being  t<>  prevent  the  unlawful 
traffic,  it  may  be  stated  generally  that  subject  to  the  terms  of  the 

25.  Gray  v.   Kimball,   42   Me.   299,  Haug),  68  Midi.  549,  :"!71  X.  \Y.  21. 

.■'.07.     Per  Tenney,   < '.    F.  -'!..  Bolberg  Mercantile  Co.  v.  State 

20.  Slate    v.    McManus,    65    Kan.  (Miss.  1909),   is  So.  622. 

720,  70  Pae.  700.  ::"-  State   v.   Grames,   68    Me.    lis. 

27.  Bound   v.   South    Carolina    Ry.  holding  thai  there  could  l»'  no  seizure 
Co.,  ">7  Fed.  485.  of  intoxicating  liquors  concealed  upon 

28.  Robison    v.    Miner     1  People    v.  the  person  of  a  traveling  rum-seller. 


570  SEARCH    AND    SEIZURE    LAWS.  [§    505 

statute  and  the  allegations  of  the  complaint  and  warrant,  all  liquor 
which  is  kept  or  deposited  for  such  purpose  may  be  seized.  So  in- 
toxicating liquors  purchased  by  municipal  officers,  without  au- 
thority and  in  contravention  of  the  statute,  are  liable  to  seizure 
and  forfeiture.-'51  And  where  the  statute  requires  that  the  casks 
or  vessels  containing  liquor  shall  be  conspicuously  marked  with  the 
name  of  the  town  or  its  agent,  they  are,  in  an  early  case  in  Maine, 
held  to  be  subject  to  seizure  where  they  are  not  so  marked  even 
though  they  belong  to  the  town.32  But  in  a  recent  case  in  Maine 
it  is  decided  that  intoxicating  liquors  properly  purchased  for  a 
city  or  town  agency,  and  in  the  possession  of  a  duly  appointed  and 
qualified  town  agent,  which  have  been  taken  by  virtue  of  a  search 
and  seizure  process,  and  libeled,  if  not  intended  for  sale  in  viola- 
tion of  law,  are  not  forfeitable,  although  the  casks  and  vessels 
containing  them  are  not  marked  in  accordance  with  the  provisions 
of  the  statutes.33  And  it  was  also  decided  in  this  case  that  liquors 
in  casks  marked  with  the  name  of  the  municipality  owning  them 
and  its  agent,  as  required  by  law  are  not  subject  to  seizure  and  for- 
feiture even  though  intended  for  sale  in  the  state  in  violation  of 
the  law,  they  being  protected  by  such  marking.34  Where  liquors 
are  intended  to  be  transported  to  a  place  within  a  state  which  is 
United  States  territory,  they  are  not  subject  to  seizure  under  the 
state  laws  which  only  have  reference  to  unlawful  sales  in  state 
territory.35  And  although  an  officer  has  no  power  to  seize  liquors 
in  excess  of  his  authority,  yet  a  seizure  of  intoxicating  liquors  is 
not  rendered  illegal  and  void  as  to  all  the  liquors  by  the  fact  that 
some  liquor  was  seized  that  was  not  intoxicating.36 

31.  State    v.    Belfast,    68    Me.    187,  seizure     plainly     and     conspicuously 

holding  that  intoxicating  liquors,  pur-  marked  with  the  name  of  such   city, 

chased  by  the  municipal  plticer.s  of  a  town  or  plantation,  and  of  its  agent 

city,  town  or  plantation,  and  kept  by  as  required  by  statute, 

the  town  agent  for  sale  are  liable  to  33-  Androscoggin    Railroad    Co.    v. 

seizure    and    forfeiture,    if   the    casks  Richards,  41  Me.  233. 

and    vessels    in    which    the    same   are  33.  State    v.    Intoxicating    Liquors 

contained    are    not    at    the    time    of  and  Vessels,  101  Me.  161,  63  Atl.  666. 


§§  506,507]  3EARCH    AND    SEIZURE    L.v.  571 

§  506.  Liquors  in  hands  of  bailee. 

Intoxicating  liquors  in  the  pog  essiou  of  a  warehouseman,  but 
inteii< !•-«  1  by  their  owner  for  unlawful  sale,  are  subject  to  forfeil 
and  the  lien  of  the  warehouseman  La  held  to  be  qo  bar  thi 
even  though  he  had  uo  intention  to  violate  the  law.37  And  in 
Massachusetts  it  has  been  decided  that  liquors  kepi  for  sale  by  a 
bailee  in  fraud  of  their  owner,  who  is  innocent  of  the  illegal 
purpose  of  the  keeper  may  be  seized  and  forfeited  as  a  nuisance.38 
But  in  Maine  it  has  been  decided  that  the  disposition  to  be  made 
of  liquors  libeled,  as  kept  for  unlawful  sale,  must  be  decided  by 
the  determination  of  the  jury  as  to  the  intention,  in  this  respect,  of 
the  person  who  owns  them,  or  who  has  authority  from  the  owner 
to  sell  them  and  a  design  on  the  part  of  one  who  is  a  mere  bailee 
of  the  owner,  without  authority  from  him  to  make  sales,  illegally 
to  sell  such  liquors,  is  held  not  to  work  a  forfeiture.39 

§  507.  Seizure  of  liquors  in  transitu — of  property  used  in  trans- 
porting. 
Where  the  statutes  authorize  a  seizure  of  liquors  in  a  desig- 
nated place  and  also  in  transitu  and  liquors  are  seized  from  a 
wagon  while  a  person  is  traveling  on  the  public  way,  the  prosecu- 
tion should  be  under  the  latter  statute.40  In  some  jurisdictions 
an  officer  may  not  only  seize  the  liquors  but  may  also  seize 
the  vehicle  in  which  they  are  being  carried.  Under  such  a  statute 
where  an  officer  seized  liquors  and  the  horse  and  wagon  used  in 
transporting  it,  it  was  decided,  in  an  action  by  the  owner  for  such 
taking,  that  the  defendant  was  bound  to  show  either  that  the 
liquors  contained  in  the  wagon  were  actually  held  for  some  illegal 

34.  State    v.    Intoxicating    Liquors  ST.  State   v.    [ntoxicating   Liquors, 

and  Vessels.  101  Me.  ltll.  03    \tl.  666.       50  Me.  506. 


88.  Commonwealth    v.    Certain    In- 
toxicating Liquors,  107  Mass.  396. 

89.  State    v.    [ntoxicating    Liquors. 
36.  Commonwealth   v.  Intoxicating      53  \\r    i_>i 


35.  state   v.    Intoxicating    Liquors, 
78  Me.  401,  6  Atl.  4. 


Liquor-.  113  Mass.  13.  40.  state  v.  Roach,  7-1  Me.  562. 


572  SEARCH    AND    SEIZURE    LAWS.  [§§    508,509 

purpose,  or  that  he  was  at  the  time  of  the  seizure  of  the  property 
able  to  ohtaiu  reasonable  proof  that  the  plaintiff  or  his  servant 
was  keeping  or  transporting  the  liquors  in  violation  of  the  statute.41 
And  the  fact  of  the  acquittal  of  one  accused  of  illegally  transport- 
ing contraband  liquor  is  a  circumstance  to  be  considered  upon  the 
question  whether  the  property  used  in  transporting  such  liquors 
should  be  confiscated,  the  statute  allowing  such  confiscation  in  a 
proper  case.42 

§  508.  Liquors  shipped  into  prohibited  districts— seizure  in  hands 
of  carrier. 

It  is  within  the  power  of  the  legislature  to  provide  for  the  seizure 
and  forfeiture  of  liquors  in  the  hands  of  a  common  carrier  for 
transportation  into  no-license  cities  and  towns  which  are  intended 
for  delivery  contrary  to  law.43  And  where  a  carrier  is  sued  by  a 
consignor  for  the  value  of  liquor  shipped  to  a  prohibited  district 
to  be  sold  contrary  to  law,  it  is  a  good  defense  that  the  liquor  was 
seized  and  destroyed  by  an  officer  acting  under  the  statute,  as  the 
carrier  could  not  lawfully  have  resisted  the  officer  acting  under  a 
legal  warrant  as  authorized  by  law  and  both  the  consignor  and 
consignee  having  been  notified  of  such  seizure  it  was  their  right 
to  appear  and  show  cause  why  the  liquor  should  not  be  forfeited.44 

§  509.  Liquors   shipped   into   prohibited   territory — contract   of 
sale  completed  there. 

It  is  a  violation  of  law  which  will  authorize  a  seizure  and  for- 
feiture to  ship  liquors  into  a  no-license  town  under  an  agreement 

41.  Kent      v.      Willey,      11      Gray  rier  to  be  carried  to  a  consignee,  that 

i  Mass  i .  368.  is,  a  delivery  to  the  consignee  for  him- 

»-•   Dobbins    v.    Gaines,    52    S.    C.  self  or  as  agent  for  another,  though 

176,  20  S.  E.  401.  the  existence  of  any  such  agency  has 

43.  Commonwealth    v.   Intoxicating  never   been   disclosed   to   the  vendors. 

Liquors.  172  Mass.  311,  52  N.  E.  380.  State  v.  Intoxicating  Liquors,  63  Me. 

It  is  a  question  of  fact  for  the  121. 
jury    whether    or    not,    when    goods  44.  St.  Louis  Southwestern  Ry.  Co. 

have  been  entrusted  to  a  common  car-  v.  Gans,  69  Ark.  252,  62  S.  W.  738. 


§   510]  SEARCH    AND    SEIZURE    LAWS.  573 

that  they  are  to  remain  the  property  of  the  consignor  but  that  the 
consignee  make  take  a  certain  quantity  at  a  time  and  pay  for 
such  quantity,  as  he  takes  it.  In  such  a  case  there  i-  a  continual 
offering  for  sale,  completed  by  the  act  of  the  consignee  in  taking 
the  quantity  mentioned  and  therefore  the  contract  and  delivery 
become  complete  in  the  no-license  town  and  the  sale  is  contrary 
to  law.48 

§  510.  Liquor  shipped  from  another  state — Iowa. 

In  Iowa  it  has  been  decided  that  intoxicating  liquors  imported 
into  that  state  by  express  and  held  by  the  express  company  as 
agent  of  the  consignor,  to  be  delivered  to  the  consignee  upon  the 
payment  of  the  purchase  price,  are  subject  to  be  seized  and  de- 
stroyed in  a  proceeding  against  the  liquors.4'1  And  subsequently 
in  this  state  where  liquors  were  shipped  from  without  the  Btate 
and  the  carrier  kept  them  in  its  warehouse  from  six  to  fifteen  days 
and  the  defendant,  a  notorious  saloon  keeper,  was  accustomed  to 
take  them  from  the  warehouse,  one  package  ar  a  time,  as  he  wanted 
it  for  unlawful  sale  in  his  saloon,  paying  the  freight  on  each  pack- 
age as  it  was  taken  away,  and  under  a  search  warrant  .-Mine  of  the 
liquor  was  seized  while  in  the  carrier's  possession,  it  was  decided 
in  a  proceeding  to  condemn  the  same  that  by  so  holding  the  liquors 
the  railway  company  ceased  to  be  a  carrier  and  became  a  ware- 
houseman and  was  not  entitled  to  protection  under  tin •  interstate 
commerce  clause  of  the  United  States  Constitution  and  that  the 
carrier  was  aiding  the  defendant  in  his  violation  of  the  law  and 
could  therefore  make  no  valid  claim  that  it  had  a  lien  for  unpaid 
freight.47     And  in  a  later  case  in  the  same  state  it  is  determined 

45.  in  re  Liquors  of  Young,  15  R.  property,  or  the  uses  to  which  it  is  to 
I.  243.  3  Atl.  •'".  1»'  ]>ut.  and  that  where  the  company 

46.  State  v.  United  States  Express  voluntarily    appears    in    the   proc 1- 

Co.,  70  Town.  -271,  :>o  X.  W.  568,  hold-  ing  and  claims  the  liquors,  the  cost 

ing  also  that  it  is  wholly  immaterial  may  properly  1m>  taxed   againsl    it. 
whether    the    officers    of    the    express  *~-  State  v.  Creeden,  7s  Iowa,  556, 

company   know   the  character   of   the  4::  X.  \V.  673,  7    L.   R.  A.  295.     The 


574 


SEARCH    AND    SEIZURE    LAWS. 


[§  511 


that  where  liquor  is  shipped  C.O.D.  from  without  the  state  to  be 
delivered  on  payment  of  the  purchase  price  the  carrier  becomes 
the  agent  of  the  consignor  for  effecting  an  illegal  sale  within  the 
and  that  such  liquors  are  subject  to  seizure.48 

§  511.  Liquor  shipped  from  another  state — Maine. 

Goods  delivered  in  pursuance  of  a  C.O.D.  order  to  a  carrier  in 
one  state  to  be  delivered  to  the  purchaser  in  another  state  are  held 
to  become  the  property  of  the  purchaser  upon  such  delivery  to  the 
carrier,  the  latter  being  regarded  as  the  agent  of  such  purchaser.49 
So  where  intoxicating  liquors  were  delivered  to  an  express  com- 
pany in  Kentucky  and  transported  to  Maine,  in  pursuance  of  such 
an  order,  the  liquors  were  held  to  become  the  property  of  the  pur- 
chaser upon  delivery  to  the  carrier  in  Kentucky,  and  if  not  in- 
tended for  unlawful  sale  by  the  claimant  in  Maine,  were  declared 
not  to  be  subject  to  seizure  while  in  the  possession  of  the  express 


company. 

court  said:  "  A  carrier  is  a  servant  of 
commerce,  and  is  protected  under  con- 
stitutional provisions  for  the  regula- 
tion of  commerce  in  the  discharge  of 
all  the  duties  of  a  carrier  recognized 
by  the  law.  Regulation  of  commerce 
reach  him  while  he  is  in  the  discharge 
cf  duties  pertaining  to  commerce. 
When  he  ceases  to  be  a  carrier  he  is 
beyond  the  protection  provided  by 
regulations  for  commerce.  If  he 
eeasea  to  be  a  carrier  and  becomes  a 
warehouseman,  he  cannot  be  pro- 
'tected  as  a  carrier."  Per  Beck,  J. 
48.  State  v.  American  Express  Co. 
lis  Iowa,  447,  92  N.  W.  66,  citing 
•  v.  O'Neil,  58  Vt.  140,  2  All.  586, 
56  Am.  Rep.  557;  State  v.  Goss,  59 
Vt.  226,  9  Atl.  829;  59  Am.  Hep.  706; 
United  States  v.  Shriver,  23  Fed.  134; 
United  States  v.  Clin-.  •_><;  Fed.  515; 
United  States  v.  Chevallier,  107  Fed. 
434:  Raker  v.  Bourcicault,  1  Daly  (N. 
Y.)    24;    State  v.   Wingfield,   115   Mo. 


428,  22  S.  W.  3G3,  37  Am.  St.  Rep. 
406;  Crabb  v.  State,  88  Ga.  584,  15 
S.  E.  455;  Dunn  v.  State,  82  Ga.  27, 
8  S.  E.  80G,  3  L.  R.  A.  199;  Wagner  v. 
Hallock,  3  Colo.  170. 

49.  State  v.  Intoxicating  Liquors, 
98  Me.  464,  57  Atl.  798. 

50.  State  v.  Intoxicating  Liquors, 
98  Me.  464,  57  Atl.  798.  The  court 
said  in  this  case:  "In  the  order 
which  the  claimant  sent  to  the  Ken- 
tucky firm,  he  designated  the  carrier 
to  whom  the  liquor  was  to  be  deliver- 
ed, and  specified  that  is  was  to  be 
shipped  C.O.D.,  express  paid.  Under 
such  circumstances  the  carrier  in  re- 
ceiving and  transporting  the  liquor 
acts  as  agent  of  the  purchaser.  '  The 
contract  stands  upon  the  simple  rule 
of  the  common  law.  The  seller  was 
entitled  to  his  price,  and  the  buyer 
to  his  property,  as  concurrent  acts. 
The  title  passed  to  the  vendee  when 
the  bargain  was  struck.     Any  loss  of 


§§  r>  1  u ,  ~> i ; ; j         search  and  seiztjre  laws.  -7- 

§  512.  Liquor  shipped  from  another  state — South  Carolina. 

In  a  late  case  in  South  Carolina,  a  seizure  of  Liquors  in  the 
l>i.w-;in]i  df  one  who  was  bringing  them  from  another  state,  was 
held  just  ititd,  it  appearing  thai  the  carrier  had  knowledge  that  such 
liquors  were  to  be  used  for  unlawful  sale  and  he  being  an  aider 
and  abettor  in  such  scheme.51  But  in  this  state  it  has  also  been 
decided  that  a  suit  for  damages  may  be  maintained  againsl  a  dis- 
pensary constable  for  the  illegal  seizure  of  liquor  imported  for 
personal  use  or  in  transit  from  another  state/'-  And  in  an  action 
against  an  officer  for  violation  of  his  duty  in  seizing  exempt  liquor, 
as  where  it  is  in  transit  from  another  state,  in  which  punitive 
damages  are  claimed,  it  is  proper  for  him  to  plead  and  prove  on 
the  issue  of  wilfulness  and  malice  that  the  plaintiff  was  known 
as  a  professional  dealer  in  illicit  liquors.53 

§  513.  Liquor  shipped  from  another  state — Vermont. 

In  a  case  in  Vermont,  it  is  decided  that  a  statute  which  au- 
thorizes the  seizure  of  liquor,  intended  for  unlawful  use,  in  the  pos- 
session of  an  express  company  does  not  interfere  with  interstate 
commerce  and  is  constitutional.     In  this  case  the  liquors  in  ques- 

property  by  accidenl  would  have  been  The    fact    thai    i! 

his   loss.     The  vendor   had  a   lion  on  were    prepaid    by    the    seller    in    ac- 

the  goods  for  his  price.     The  vendor  cordance     with     the     term-;     of     the 

could  sue  for  the  price,  and  the  vendee  order  has  no  tendency  to  show  thai 

upon  a  tender  of  the  price  could  sue  he  intended  to  preserve  the  jua  d 

for  the  property.'    staler,  [ntoxicat-  nendi   and    to    prevent    the    pro] 

ing  Liquors,  Moffitt,  claimant,  7:!  Me.  from  passing  to  the  vendee.     Sawyer 

278.     This  rule  was  affirmed  in  state  .Medicine   Co.   v.   Johnson,    17--    Mass. 

v.  Peters,  91   Me.  31,  39  All.  342,  and  374,  59  Atl.  L022.     In  the  case  at  bar 

imcd   in  Greenleaf  v.  Gallagher,  the  liquor  was  sold  and  delivered,  and 

93  Me.  549,    15   Ail.  829,  7!   Am.  St.  the    title    passed    to   the   claimant    in 

Rep.  371.    The  law  is  well  established  Kentucky,   and   noi    in   Maine.'-     Per 

that  in  the  absence  of  any  evidence  to  Whitehouse,  J. 

the   contrary,    such    a    delivery    to    a  51.  Jaro  v.  Bolstein,  7'>  s.  C.  111. 

common  carrier  ai  the  express  requesl  52  S.   E.  s7o. 

of    the    purchaser    will     be    deemed    a  52.    Smith    V    T.afar.    ('.7    S.    ('.    491, 

delivery    to    the    purchaser    himself.      46  S.   E.  332. 

Frank    v.    Boey,    128    Mass.   263   and  53.  Smith   v.   Lafar,  G7   S.  C.  491, 

Wigton    v.    Bowley,    L30    Mass.    252.      46  S.  E.  332. 


576 


SEARCH    AND    SEIZURE    LAWS. 


[§  514 


tion  were  shipped  C.O.D.  from  out  of  the  state,  and  it  was  declared 
that  the  contract  was  an  inchoate  one  and  that  there  being  a  con- 
dition precedent  the  title  did  not  pass  until  the  performance  as 
carrier  of  that  condition.54  This  case  came  before  the  United 
States  Supreme  Court  on  a  writ  of  error  which  was  dismissed  on 
the  ground  that  the  decision  of  the  state  court  was  on  the  broad 
ground  of  where  the  sale  took  place  and  that  no  federal  question 
was  involved  therein.55 


§  514.  Liquor  shipped  from  another  state — United  States. 

In  the  United  States  Supreme  Court  in  a  case  which  involved 
the  construction  of  a  statute  in  Iowa,  under  which  liquors  con- 
signed from  Illinois  into  Iowa  were  seized  before  delivery  to  the 
consignee  on  the  ground  of  a  non-compliance  with  the  state  law  as 


54.  State  v  O'Neil,  58  Vt.  140,  2 
Atl.  586,  56  Am.  Rep.  557.  The  court 
said:  "Attached  to  the  very  body  of 
the  contract,  and  to  the  act  of  deliv- 
ery to  the  carrier  was  the  condition 
of  payment  before  delivery  of  posses- 
sion to  the  consignee.  With  this  con- 
dition unfulfilled  and  not  waived  it 
would  be  impossible  to  say  that  a  de- 
livery to  the  carrier  was  intended  by 
tlie  consignor  as  a  delivery  of  posses- 
sion to  the  consignee;  or  as  a  surren- 
der of  the  legal  title.  The  goods  were 
intrusted  to  the  carrier  to  transport  to 
the  place  of  destination  named,  there 
to  present  them  for  acceptance  to  the 
consignee,  and  if  lie  accepted  them 
and  paid  the  accompanying  invoice 
and  the  transportation  charges,  to 
deliver  them  to  him;  otherwise,  to 
notify  the  consignor  and  hold  them 
subject  to  his  order.  It  is  difficult  to 
see  how  a  seller  could  more  positively 
and  unequivocally  express  his  inten- 
tion not  to  relinquish  the  right  of 
property  or  possession  in  poods  until 
payment  of  the  purchase  price  than 
by  this  method  of  shipment.     We  do 


not  think  the  case  is  distinguishable 
in  principle  from  that  of  a  vendor 
who  sends  his  clerk  or  agent  to 
deliver  the  goods,  or  forwards  them 
to,  or  makes  them  deliverable  upon 
the  order  of,  his  agent,  with  instruc- 
tions not  to  deliver  them  except  on 
payment  of  the  price,  or  perform- 
ance of  some  other  specified  condition 
precedent  by  the  vendee.  The  vendors 
made  the  express  company  their  agent 
in  the  matter  of  the  delivery  of  the 
goods,  with  instructions  not  to  part 
with  the  possession  of  them  except 
upon  prior  or  contemporaneous  re- 
ceipt of  the  price.  The  contract  of 
sale  therefore  remained  inchoate  or 
executory  while  the  goods  were  in 
transit,  or  in  the  hands  of  the  express 
company,  and  could  only  become  ex- 
ecuted and  complete  by  their  delivery 
to  the  consignee.  There  was  a  com- 
pleted executory  contract  of  sale  in 
New  York,  but  the  completed  sale 
was,  or  was  to  be,  in  this  state."  Per 
Royce,  C    J- 

55.  O'Neil    v.   Vermont,   144  U.  S. 
323,  12  Sup  Ct.  693. 


§   515]  SEARCH    AND    SEIZURE    LAWS.  577 

to  a  certificate  thereon  by  the  county  auditor,  it  was  determined 
that  so  long  as  the  goods  were  in  transit  the  [owa  law  could  not 
apply  without  being  repugnant  t<>  tin-  Constitution  <>|'  the  United 
States.56  And  it  has  been  decided  in  the  federal  conns  that  a 
statute  providing  that:  "  Any  package  containing  intoxicating 
liquors  without  such  certificate  (the  certificate  of  a  county  dis- 
penser) which  shall  be  brought  into  this  state  or  shipped  out  of  the 
state  or  shipped  from  place  to  place  within  the  state  by  any  rail- 
road, express  company,  or  other  common  carrier,  shall  be  regarded 
as  intended  for  unlawful  sale,"  is  to  be  regarded  as  a  rule  of  evi- 
dence prescribed  only  in  civil  or  criminal  proceedings  against  the 
common  carrier  transporting  liquors  in  violation  of  the  act  and 
will  be  extended  to  no  other  case  and  is  not  applicable  to  liquors 
transported  into  the  state  prior  to  the  taking  effect  of  the  act  and 
from  that  time  kept  in  the  warehouse.57 

§  515.  Liquor  shipped  from  another  state — conclusion 

From  an  examination  of  the  cases  in  this  connection  the  follow- 
ing propositions  seem  to  be  sustained :  First.  A  person  has  the 
right  to  purchase  liquors  in  another  state  and  have  them  shipped 
to  him  in  his  own  state  where  the  sale  is  completed  in  the  former 
state  and  the  liquor  is  intended  for  the  consignee's  personal  use. 
In  such  a  case  the  liquors  cannot  be  legally  seized  within  the  state 
of  the  consignee's  residence.  Second.  It  would  seem  that  liquors 
may  be  seized  even  in  the  hands  of  a  carrier  transporting  them 
from  another  state  with  knowledge  of  an  unlawful  purpose  to 
which  they  are  to  be  put,  as  in  such  a  case  he  becomes  an  aider 
and  abettor  in  an  attempt  to  violate  the  law.  Third.  Where  the 
carrier  has  become  a  warehouseman  merely,  the  relation  of  a  car- 
rier having  ceased,  liquors  which  are  in  his  possession  and  are  in- 


56.  Rhodes  v.   State  of   Iowa,    170  B7.  Bound    v.    South    Carolina   Ry. 

U.  S.  412,  18  Sup.  Ct.  664.  Co.,  57   Fed.  485. 


578  SEARCH    AND    SEIZURE    LAWS.  [§    516 

tended  for  unlawful  sale  or  use  may  be  seized  while  in  his  posses- 
sion as  a  warehouseman.  Fourth.  Where  goods  are  shipped 
C.O.D.  from  one  state  to  a  consignee  in  another  state,  the  carrier 
becomes  the  agent  of  the  consignor  and  the  contract  is  not  a  com- 
plete one  until  the  delivery  to  the  consignee  in  his  state  of  residence 
and  the  payment  of  the  price  by  him.  The  sale  then  becomes  a  sale 
in  the  state  in  which  the  consignee  lives  and  is  subject  to  the  laws 
of  that  state  and  being  so  the  liquor  may  be  seized  even  though  in 
the  hands  of  the  carrier.58 

§  516.  Seizure  of  property  in  connection  with  liquors, 

A  statute  is  constitutional  which  provides  that  places  where 
liquors  are  kept  for  unlawful  sale  are  common  nuisances  and  which 
authorizes  the  condemnation  and  destruction  of  both  the  liquors 
and  property  used  in  maintaining  such  place.59  So  in  an  early 
case  in  Connecticut  it  was  held  that  an  act  was  constitutional  which 
provided  that  all  liquor  intended  by  the  owner  or  keeper  thereof 
to  be  sold  in  violation  of  the  act  should  with  the  vessels  in  which 
it  was  contained  be  forfeited  to  the  town  wherein  it  was  kept.6a 
But  where  the  statute  does  not  authorize  the  seizure  of  vessels  con- 
taining liquors  an  officer  making  such  a  seizure  has  been  held  to  be 
liable  therefor.61    So  the  officer  unless  authorized  by  statute  cannot 

58.  In    this    connection    we    quote  59'  State    v.    McManus,    65    Kan. 

from     Moore     on     Carriers,     p.     199,  720,  70  Pac.  700. 

'•  Where  goods  are  sent  with  instruc-  A  description  of  the  property 
tions  not  to  deliver  them  until  they  to  be  seized  in  connection  with  the 
are  paid  for,  the  carrier  who  accepts  liquors  as  "all  articles  found  therein 
them  with  such  instructions,  under-  used  in  or  about  the  carrying  on  of 
takes  not  to  deliver  them  unless  the  the  business  aforesaid  "  has  been  held 
condition  of  payment  is  complied  sufficient.  State  v.  Markuson,  7  N. 
with.  In  addition  to  its  obligations  D.  155,  73  N.  W.  82. 
as  a  carrier,  it  becomes  the  agent  of  GO.  State  v.  Wheeler,  25  Conn.  290. 
the  consignor  to  collect  and  receive  61.  Black  v.  McGiliery,  38  Me.  287. 
the  price  of  the  goods  and  return  the  But  see  Perkins  v.  Girds,  29  Vt. 
money  to  the  consignor.  This  obliga-  343,  holding  that  where  the  officer 
tion  is  not  one  arising  or  implied  seizes  liquors  he  may  also  seize  the- 
from  the  nature  of  its  business,  but  is  casks  in  which  they  are  contained, 
based  upon  contract,  express  or  im-  though  the  statute  contains  no  ex- 
plied."  press    provision    to    that    effect,     it 


\\ 


§    517]  SEARCH    AM)    Sl.l/I  KK    LAWS.  -7..) 

seize  bar  fixtures  or  refrigerators.02  In  a  ease  in  Maine,  however, 
it  is  decided  that  in  executing  the  search  and  seizure  process  the 
officer  is  not  confined  to  faking  the  liquors  bu1  may  also  take  and 
carry  away  such  articles  <>('  property  as  may  reasonably  be  used 
as  evidence  of  guilt  on  the  trial  on  the  process.88  And  a  beer 
faucet  being  adapted  for  the  illegal  keeping  and  Bale  of  liquors 
has  been  held  liable  to  seizure.04  ]>ut  though  a  seizure  of  property 
other  than  the  liquors  may  be  justified  where  to  be  used  for  the 
purpose  of  evidence,  the  statute  not  authorizing  the  same,  the 
owner  thereof  should  be  entitled  to  a  return  of  such  property 
when  it  has  accomplished  the  purpose  for  which  seized. 

§  517.  Complaint  generally. 

The  complaint  should  contain  direct  and  positive  allegations  of 
jurisdictional  facts  required  by  statute  without  resort  to  intend- 
ment or  inference.65  So  in  a  recent  case  in  Texas  it  is  declared 
that  it  is  essential  that  the  complaint  should  state  every  material 
fact  necessary  to  constitute  the  offense  as  required  by  the  act  and 
for  which  the  forfeiture  is  sought,  and  which  is  required  to  be 
proven  on  the  trial  of  the  case  to  enable  the  state  to  recover  the 


being   said   that   it   can    not   be   sup-  sufficient.      Commonwealth    v.    Leddy, 

posed    that    the    legislature    intended  105  Mass.   381. 

that   an   officer  going  to  seize  goods  Where  in  the  statute  there  is  a  dis- 

must  go  provided  with  casks.  tinction  between  the  words  "house" 

62.  Her  Brewing  Co.  v.  Campbell,  and  "  dwelling-house "  the  word 
66  Kan.  361,  71  Pac.  825  "house''  will  not  be  held  in  a  com- 

63.  Getchell  v.  Page,  103  Me.  387,  plaint  as  the  equivalent  of  the  word 
59  Atl.  624.  "dwelling-house/'      Sanders   v.    State. 

64.  Collins  v  Noyes,  66  N.  H.  619,  2  [owa,  230. 

27  Atl.  225.  Complaint    not     supported    by 

65.  State  v.  Whalen,  85  Me.  469,  verdict.  Where  a  complainl  alleges 
27  Atl.  348.  In  re  Liquors  of  Hox-  that  the  liquors  wore  deposited  and 
sie,  15  R.  I.  241,  3  Atl.  1.  kept,  it  is  not  supported  by  a  verdict 

In    a    complaint    and    warrant  in  (lie  alternative  thai  the  liquor  was 

for    the     search     of     a    dwelling  owned  or  kept   by  Buch   person.     I  '>>m- 

house.    an    averment    that    the    com-  monwealtfa     v.     Certain     Intoxicating 

plainant's  belief  that   liquor  is  kept  Liquors,  4   Allen    (Mass.)    601. 

there  is  founded  on  common  report  is  A   defacement   of   a   complaint 


V 


580  SEARCH    AND    SEIZURE    LAWS.  [§§    518,519 

judgment  of  forfeiture.06  As  a  general  rule  it  is  sufficient  if  it 
conforms  to  the  statute  in  setting  out  the  offense.67  So  a  complaint 
in  substantial  compliance  with  the  terms  of  the  statute  in  respect 
to  the  names  of  the  complainants  is  sufficient.68 

§  518.  Sworn  complaint. 

Where  a  statute  requires  facts  to  be  shown  by  affidavit  as  a  basis 
for  search  and  seizure,  an  affidavit  made  upon  information  and 
belief  and  which  does  not  state  or  show  the  facts  required  by 
statute  gives  no  jurisdiction  to  the  court  to  issue  a  warrant,  and  if 
a  warrant  is  issued  in  such  a  case  it  is  void  and  resistance  of  it  is 
not  a  contempt.69  Under  a  statute  requiring  that  there  must  be 
a  sworn  complaint,  a  complaint  is  sufficient  where  made  on  solemn 
affirmation  by  one  conscientiously  scrupulous  of  taking  an  oath.70 
The  oath  of  one  of  the  complainants  does  not  form  a  part  of  the 
complaint,  although  incorporated  therein.71 

§  519.  Warrant  generally. 

Where  the  statute  requires  a  warrant  for  the  seizure  of  liquor 
there  must  be  a  compliance  therewith,  and  an  information  for  the 
forfeiture  of  liquor  is  fatally  defective  where  it  does  not  appear 
that  it  was  so  seized.72    A  provision  that  a  search  warrant  "  shall  be 


with  pen  and  ink  which  does  not  in  70.  State   v.    Welch,    79   Me.   99,   8 

fact  alter  the  complaint  but  leaves  it  Atl.  348. 

as   it  was  before  does  not  vitiate   it.  71.  Commonwealth    v.    Intoxicating 

State  v.  Intoxicating  Liquors,  44  Vt.  Liquor,  142  Mass.  470,  8  N.  E.  421. 

208.  72.  in  re  The  Liquors  of  Peter  Ger- 

66.  Myers  v.  State,  47  Tex.  Civ.  main,  State  v.  Certain  Liquors,  21 
App.  336.  R.  I.  531,  45  Atl.  552. 

67.  in  re  The  Liquors  of  Hoxsie,  Where  a  warrant  was  valid  at 
15  R.  I.  241,  3  Atl.  1.  the    time    it    was    issued    and    has 

68.  State  v.  Intoxicating  Liquors,  been  legally  served  by  an  officer  he 
44  Vt.  208.  cannot  be  affected  by  any  omission  of 

69.  State  v.  McGahey,  12  N.  D.  the  magistrate  in  the  subsequent  pro- 
535,  97  X.  W.  805,  followed  in  State  ceedings  in  the  case.  Gray  v.  Davis, 
v.  Patterson,  13  N.  D.  70,  99  N.  W.  27  Conn.  447. 

67.  A  search  warrant  can  only  he 


§  519] 


SKAKCH     AND    SEIZURE     LAWS. 


•>1 


supported  by  the  oath  of  the  complainant  "  is  complied  with  by  the 
complainant's  making  oath  to  the  complaint  upon  which  the  war- 
rant is  issued.78  Where  the  constitution  prohibits  the  issuance  of 
a  warrant  to  search  except  upon  probable  cause  and  supported  by  I 
oath  or  affirmation,  it  requires  thai  a  statute  should  be  so  framed 
as  to  require  that  one  complaining  shall  state  the  facts  fn.m  which 
he  has  formed  his  belief  so  that  the  magistrate  may  judge  whether 
they  constitute  the  probable  cause  required  by  the  statute.71  In 
Indiana  it  has  been  decided  under  a  similar  constitutional  pro- 
vision, that  an  act  is  valid  which  provides  for  the  issuance  of  a 
warrant  on  information  and  belief.75  And  in  an  early  case  in  Con- 
necticut, under  a  constitutional  provision  requiring  thai  a  wan-ant 
must  be  "supported  by  oath  or  affirmation"  an  oath  "that  they 
have  reason  to  believe  and  do  believe  the  allegations  in  said  com- 
plaint to  be  substantially  true,"  was  held  sufficient,  it  nol  being 
necessary  that  the  facts  upon  which  the  belief  was  founded  should 
be  sworn  to.76     In  such  a  warrant  if  all  that  is  necessary  to  show 


served  to  search  one  place  and  if 

it  describes  more  than  one  place  it  is 
invalid.  Stat.-  v.  Duane,  100  Me.  447, 
62   All.  80. 

The  jurat  is  not  conclusive  as 
to  the  time  of  making  the  oath  and 
where  there  is  clearly  an  error  therein 
in  this  respect  a  recital  in  the  war- 
rant may  control.  Commonwealth  v. 
Certain  Intoxicating  Liquors,  128 
Mass.  72. 

Justice  entitled  to  fees. — When 
warrants  are  issued  for  the  seizure  of 
intoxicating  liquors,  and  no  liquors 
are  found,  the  justice  issuing  the 
warrants  is  entitled  to  his  fees,  and 
lie  may  recover  the  same  of  the 
county,  (ianett  v.  Polk  County,  7  s 
Iowa  108,  42  X.  \Y.  618,  following 
Byram  v.  Polk  County,  7f>  Iowa  7a. 
40   X.  W.  102. 

Effect  of  misrecital. — Where  a 
warrant  was  in  fact  issued  by  a 
justice  of  the  court  it  is  nol   a   fatal 


defect  that  it  contains  a  recital  that 
it  was  issued  by  the  elerk  of  the  court, 
this  being  regarded  as  at  mosl  a 
merely  formal  misrecital.  Common- 
wealth v.  Certain  intoxicating  Liq- 
uors. 135  Mass.  519. 

Duty  of  judge  to  issue  ■war- 
rant.— Where  upon  the  presentation 
of  an  affidavit  and  information  to  a 
judge  of  a  designated  court  it  i-  his 
duty  to  issue  a  warrant,  he  can  not 
refuse  to  do  so.  State  v.  Fulkerson, 
73  Ark.  163,  83  S.  \V.  934,  86  S.  \\  . 
817. 

73.  Downing  v.  Porter,  8  Gray 
i  Mass.  i  539;  Allen  v.  Staples,  6  Gray 
(Mass.)    191. 

74.  Dupree  v.   State    (Tex.   S.   I 
119  S.  \Y.  301. 

75.  Rose  v.  State  |  Ind.  S.  C.  1909), 
v7   \.   E.  103. 

70.  Lowrey  v.  Gridley,  30  Conn. 
450. 


582  SEARCH    AND    SEIZURE    LAWS.  [§§    520,521 

rbat  the  liquors  are  liable  to  forfeiture  aud  the  persons  arrested 
to  punishment  is  set  out  and  the  warrant  duly  issued  from  a  court 
of  competent  jurisdiction,  it  is  sufficient  to  hold  the  liquors.77 
Where  the  statute  does  not  prescribe  the  time,  a  warrant  shall 
remain  in  force  it  will  remain  in  force  a  reasonable  time  only,  and 
it  is  for  the  court  to  determine  what  is  a  reasonable  time.78 

§  520.  Warrant  and  complaint  in  one  instrument. 

The  search  warrant  may  embody  the  complaint  therein  and 
both  be  issued  together  as  one  instrument,  the  complaint  in  such 
case  not  losing  its  identity.79  And  it  has  been  decided  that  the 
warrant  of  arrest  and  the  search  warrant  may  be  in  the  same  in- 
strument.80 Where  the  warrant  and  complaint  are  in  one  paper 
it  is  held  that  an  averment  in  the  complaint  need  not  be  repeated 
in  the  warrant  which  refers  to  the  complaint.81  Where  the  statute 
requires  the  complaint  to  be  fully  set  forth  in  the  warrant,  there 
should  be  a  compliance  therewith.82 

§  521.  Variance  between  complaint  and  warrant. 

A  material  variance  in  the  warrant  from  the  description  of  the 
place  given  in  the  complaint  will  render  the  warrant  void.83  But  a 
variance  between  the  complaint  and  the  warrant  as  to  the  number 
of  the  building  to  be  searched,  the  complaint  being  correct,  is  not 
material  and  a  search  at  the  number  given  in  the  complaint  is 
justified,  the  place  being  otherwise  sufficiently  described.84  And 
if  the  complaint  and  warrant  contain  repugnant  words  as  to  the 
owner,  they  will  be  rejected  as  unimportant  if,  independent  of 

77.  Adams    v.    McGlinchy,    66    Me.  81.  Guptill   v.   Richardson,   62   Me. 
474.                                                                      257. 

78.  State   v.   Guthrie,   90   Me.   448,  S3.  Guenther      y      D  fl      Q 

38  Atl.  368,  holding  a  delay  of  three  J 

'  (Mass  )    400 

days   unreasonable   in  the  absence  of  "' 

some  explanation.  83'  Commonwealth    v.    Certain    In- 

79.  State  v.  Erskine,  66  Me.  358.  toxicating  Liquors,  109  Mass.  371. 

80.  State  v.  Stoffels,  89  Minn.  205,  84.  State  v.  Robinson,  49  Me.  285. 
94  X.  W.  675. 


§  522]  SEARCH    AND    SEIZURE    LAWS.  533 

them,  the  description  given  is  sufficiently  clear  to  designate  the 

place  to  In-  searched. sr'  Again,  a  command  to  the  officer  in  a  war- 
rant for  search  and  seizure  to  search  the  person  when  the  compli 
contains  no  corresponding  allegation  may  be  regarded  as  sur- 
plusage where  enough  remains  with  thai  stricken  ou1  to  constitute 
a  record  complete  in  itself  and  sufficient  upon  which  to  found  a 
verdict  and  judgment.  Therefore  this  fact  is  no  ground  in  ai 
of  judgment.80 

§  522.  Who  may  complain. 

It  is  generally  provided  by  statute  who  may  make  the  complaint 
or  information  in  proceedings  of  this  character.  Where  the  statute 
so  requires  the  officer  making  the  seizure  must  also  make  the  com- 
plaint for  the  violation  of  the  law.87  But  the  fact  thai  the  in- 
formation does  not  aver  that  it  was  made  by  a  "credible 
resident"  of  the  county  does  not  constitute  a  sufficient  ground  for 
demurrer.88  So  in  Iowa  it  has  been  decided  that  though  the  in- 
formant for  a  search  warrant  must,  by  statute,  be  a  resident  of 
the  county,  it  is  not  necessary  to  allege  that,  it  being  held  sufficient 
if  the  justice  issuing  the  warrant  personally  knows  that  fact.89 
And  a  complaint  and  warrant  arc  not  defective,  because  they  only 
give  the  residence  of  the  complainant  as  of  a  certain  county,  his 
residence  being  under  the  statute  immaterial  upon  any  issue 
presented.90  The  collector  of  customs  has,  in  Alaska,  been  held  a 
proper  person  to  petition  for  a  warrant  for  search  and  seizure  of 
liquor  unlawfully  imported.91 


85.  State  v.   Barthtt.    17    Me.  ."iSs..  any  "  credible  resident  of  the  county." 

se.  state  v.  Chartrand,  86  Me.  547,  s:>-  State  v.   Blair  and  Certain  [n- 

.'?(»  Atl.  10.  toxicating   Liquors,   72    towa    591,   ■"•! 

87.  Fenner  v.  St.  te,  3  R.  I.  107.  N.  W.  432,  citing  state  v.  Thompson, 

88.  Weir  v.  Allen,  47  Iowa  482,  eit-  44  [owa  399. 

ing  State  v.  Thompson,  44  Iowa  399.  00.  Commonwealth   v.    Intoxicating 

The    statute    simply     provided     thai  Liquors,  113  Mass.  13. 

the    information   should   be    made   by  5>1-  In    r<    Moore,   66   Fed.   047. 


584  SEARCH    AND    SEIZURE    LAWS.  [§§   523,  524 

§  523.  Alleging  probable  cause. 

Where  a  statute  provides  that  warrants  shall  allege  that  probable 
cause  has  been  shown  for  their  issuance  such  provisions  must  be 
complied  with.92  But  unless  the  statute  expressly  requires  it,  the 
warrant  need  not  allege  that  probable  cause  has  been  shown.93 
Again,  a  conviction  before  a  justice  of  the  peace,  upon  a  complaint 
for  illegally  transporting  liquors,  from  which  an  appeal  has  been 
taken  is  not  sufficient  evidence  of  probable  cause  to  believe  that  the 
defendant  was  so  transporting  the  liquors  to  justify  the  previous 
arrest  of  the  defendant  and  seizure  of  the  liquors  by  an  officer  with- 
out a  warrant  under  a  statute  permitting  such  procedure  by  him 
upon  reasonable  proof.94 

§  524.  Allegations  as  to  liquors — kinds  and  quantities. 

It  is  a  general  rule  that  both  the  complaint  and  warrant  should 
contain  a  description  of  the  liquors  which  the  officer  is  to  search  for 
and  seize.  The  object  or  necessity  of  such  an  allegation  is  manifest 
in  that  it  tends  to  prevent  unreasonable  searches  and  seizures,  and 
to  act  as  a  limitation  upon  the  officer's  authority.  And  where  the 
constitution  requires  that  the  thing  to  be  seized  shall  be  described 
in  the  warrant  a  statute  has  been  held  unconstitutional  in  authoriz- 
ing seizures  and  failing  to  require  a  description  of  the  liquors  to  be 
seized.95  In  this  connection  it  is  decided  that  a  description  of  the 
liquors  seized  in  the  libel,  mention  and  notices  that  is  sufficiently 
specific  to  notify  the  owner  of  the  fact  of  seizure  and  the  identity 
of  the  liquors  seized  is  all  that  is  required.90  Under  a  constitu- 
tional provision  requiring  only  "  a  special  designation  of  the  place 
to  be  searched  and  articles  to  be  searched  for"  liquor  may  in  the 

f>2.  Commonwealth    v.    Certain    In-  94.  Mason     v.     Lathrop,     7     Gray 

toxicating    Liquors,    105    Mass.    178,  (Mass.)    354. 

holding  that  a  warrant  thus  defective  »5.  Dupree    v.    State     (Tex.    S.    C. 

will  not  protect  an  officer  in  its  serv-  1909),  119  S.  W.  301. 

;,.,.  !>0.  Ring   v.    Nichols,    91    Me.    478, 

93.  Holland   v.    Seagrave,    11    Gray  40  Atl.  329. 
(Mass.)    207. 


SEAR*  II    AND    SEIZURE    LAW  8. 


§  524] 

wrrant,  be  described  simply  by  its  generic  name,  if  it  be  destitute 
of  any  peculiar  and  known  marks  or  qualities,  by  which,  in  the 
description,  it  can  be  distinguished  from  other  articles  of  the  same 
general  name.97  And  a  description  in  the  complainl  and  warrant 
of  the  property  as  intoxicating  liquor  has  been  held  to  be  suffi- 
cient.98 A  specification  in  the  complaint  as  to  the  kinds  and  quan- 
tities of  liquors  will  1,..  construed  as  descriptive  of  the  liquor-  and 
not  to  limit  their  quantities  and  the  authority  of  the  officer  under 
the  warrant  which  recites  the  complaint  has  been  laid  not  to  be 
limited  to  a  seizure  of  the  quantity  specified."  And  the  fart  that 
the  quantity  of  liquors  specified  in  the  complaint  and  warrai 
considerably  in   excess  of  the  quantity  actually  seized   is   not   a 


A  description  of  the  liquors  in  a 
warrant  as  "  a  certain  quantity  of  gin, 
being  about  and  not  exceeding  one 
hundred  gallons,"  has  been  held  suffi- 
cient. Downing  v.  Porter,  8  Gray 
(Mass.)    539. 

Sufficient  description  of  liquors  see 
Commonwealth  v.  Intoxicating  Liq- 
uors, 113  Mass.  13. 

97.  State  v.  Robinson,  33  Me.  564, 
holding  that  a  warrant  for  the  search 
of  "'  spirituous  or  intoxicating  liq- 
uors"  will  not  be  considered  unau- 
thorized, for  the  want  of  a  sufficient 
description  of  the  thing  to  be  searched 
for. 

98.  Lincoln  v.  Smith,  27  Vt.  328. 
The  court  said:  "In  the  statute  un- 
der consideration,  and  in  the  com- 
plaint, and  warrant,  the  property  1<> 
be  sea  relied  for  and  seized  is  de- 
scribed as  intoxicating  liquor,  and  it 
could  not  well  be  designated  with 
more  particularity.     It  could  not  have 

I n  the  intention  of  the  constitution, 

to  require  the  things  to  be  searched 
for  and  seized,  to  be  so  particularly 
described,  as  to  prevent  any  benefic- 
ial purpose  to  be  accomplished  by  a 
search   warrant.     All   that  should  be 


required  is  to  describe  them  as  nearly 

as    may   be.      If  the    liquor    had    1 n 

described,  by  a  designation  of  its  par- 
ticular kind,  or  species,  instead  of 
using  the  generic  term,  it  is  difficult 
to  see  how  this  would  have  given 
more  certainty;  and  besides  in  moal 
cases  it  would  be  impracticable."  Per 
Bennett.  ,F. 

Allegation  as  to  mixed  liq- 
uors.—A  complainl  and  warrant  to 
search  for  "  intoxicating  liquoi 
wit:  a  certain  quantity  of  mixed  liq- 
uors" sufficiently  alleges  that  the 
mixed  liquors  an-  intoxicating.  Com- 
monwealth v.  uertain  intoxicating 
Liquors,  1 10  Mass.  41t;. 

!>J>.  State  v.  Brennan's  Liquoi 
Conn.  278. 

Compare  Commonwealth  v.  Certain 
[ntoxicating  Liquors,  13  Allen 
I  Mass.  i  :.m.  holding  that  if  a  search 
warrant  for  intoxicating  liquors  de- 
scribes the  liquors  simply  by  naming 
the  kinds  and  quantities,  liquors  of 
the  kinds  and  not  exceeding  the  quan- 

t  it  ies   named   may  lie  seized. 

'■  I  iommonwealth  v.  Certain  Intox- 
icating Liquors,  :»7  Mass.  63. 


58G  SEARCH    AND    SEIZURE    LAWS.  [§   525 

ground  for  the  dismissal  of  the  complaint.1  Ordinarily  the  author- 
ity of  the  officer  is  regarded  as  limited  to  a  seizure  of  the  kinds  of 
liquors  specified.  So  where  the  liquor  was  described  as  "  lager 
lxrr  and  other  malt,  spirituous  liquor  "  in  the  complaint,  it  was 
held  that  it  did  not  authorize  the  seizure  of  whiskey  kept  for  un- 
lawful sale.2  And  the  principle  that  words  of  a  special  description 
following  a  videlicet  restrict  and  limit  the  words  of  general  de- 
scription has  been  applied  in  the  case  of  a  complaint  and  warrant 
for  the  seizure  of  "  certain  intoxicating  liquors,  to  wit :  "  followed 
by  a  designation  of  the  particular  kind  of  liquors.3 

§  525.  Allegation  as  to  intent — keeping  for  unlawful  sale. 

Where  the  statute  requires  an  allegation  in  the  complaint  of  an 
intent  to  sell  in  violation  of  law,  such  an  allegation  is  essential 
to  the  validity  of  the  complaint  as  the  foundation  of  the  prosecu- 
tion.4 So  it  is  held  essential  to  a  forfeiture  that  it  should  be 
alleged  in  the  complaint  and  proved  on  the  trial  that  the  liquors 
were  intended  for  sale  in  the  city  or  town  in  which  they  were  kept 
or  deposited.5  The  keeping  of  the  liquors  for  the  purpose  of  un- 
lawful sales  is  generally  what  is  essential  to  allege  and  not  actual 
unlawful  sales,  though  evidence  of  such  sales  is  admissible  as 
showing  the  intent  of  the  keeping. fi  Where  the  statute  provides  for 
seizure  where  liquors  are  kept  for  unlawful  sale  an  allegation  that 
they  are  so  kept  is  essential  in  the  complaint.7  And  a  complaint 
is  sufficient  in  charging  that  liquor  was  kept  for  sale  in  violation 
of  law  which  contains  an  allegation  that  certain  liquor  kept  by  a 
designated  person  is  intended  by  him  for  sale  in  the  state,  he  not 
being  authorized  to  manufacture,  keep  for  sale  or  sell  the  same 

-•  State  v.  Lager  Beer,   70  N.   H.  <*.  State  v.   Blair  and  Certain   In- 

154,  49  Atl.  575.  toxicating  Liquors,   72   Iowa   591,   34 

3.   Mallett   v.    Stevenson,   20   Conn.  N.  W.  432. 

428.  7.  State   v.    Erskine,    00   Me.    358; 

■*•  Commonwealth  v.  Certain  Intox-  State  v.  Spirituous  Liquors,  G8  N.  H. 

ication  Liquors,  4  Allen   (Mass.)  593.  47,  40  Atl.  398. 

•-••  State  v.   Gurney,   33  Me.  527. 


88  526  5271  SEARCH    AND   SEIZURE    laws.  587 

within  the  state.8  Onder  a  statute  in  Rhode  [sland  ii  has  been  held 
sufficient  in  such  an  information  to  charge  thai  the  liquors  were 
kepi  "  for  Bale  within  the  state  in  violation  of  law,*' "■'  or  to  charge 
thai  they  "were  kept   for  the  purpose  of  Bale,  without  authority, 

within  this  state,  againsl  the  statute. En  this  connection  it  has 

been  decided  thai  an  allegation  that  intoxicating  liquors  are  kepi 
by  a  designated  person,  he  not  being  authorized  to  -ell  the  -ana-  for 
any  purpose  is  sufficient,  as  it  excludes  any  legal  righl  in  him  to  sell 
the  same  in  any  manner.1 ' 

§  526.  Allegations  as  to  owner  or  keeper. 

Where  the  statute  requires  it  the  information  for  a  warrant 
must  charge  some  specific  person  as  the  owner  or  keeper  of  the 
liquors  with  the  illegal  intent.12  But  in  the  absence  of  a  statute 
providing  otherwise  it  is  sufficient  to  allege  in  the  complainl  that 
intoxicating  liquors  are  kept  "  by  a  person  unknown  "  for  -ale  in 
violation  of  law.13 

§  527.  Description  of  place  to  be  searched. 

As  a  general  rule  the  complaint  should  describe  the  premises  to 
be  searched.14  And  a  statute  requiring  a  particular  description  of 
the  place  to  be  searched  or  the  property  to  be  seized  must  he  com- 

s.  Commonwealth  v.  Intoxicating  13.  Commonwealth  v.  Certain  En- 
Liquors,   110  Mass.   ls-2.  toxicating  Liquors,   lit;  Mass.  21. 

!>•  In  re  The  Liquors  m'  Eoxsie,  15  14-  State  v.  Knowlton,  70  Me.  200; 
R.  I.  241,  3  Ail.  1,  holding  it  un-  Flaherty  v.  Longley,  62  Me.  420; 
necessary  to  use  the  words  "with  Commonwealth  \.  Certain  [ntoxicat- 
force  and  arms":  " againsl  tlic  stat-  ing  Liquors,  L13  Ma>s  455;  Common- 
ute"  or  to  contain  negative  aver-  wealth  v.  Certain  [ntoxicating  La- 
ment setting  out  a  lack  of  authority  uors,  113  Ma—.  208;  Commonwealth 
to  keep  liquors  for  sale.  v.  [ntoxicating  Liquors,  11:*.  Mas-. 
10.  iii  re  The  Liquors  of  Young,  13;  Commonwealth  v.  Certain  [ntox- 
1.")  1!.  I.  243,  '■>  Atl.  3.  icating  Liquors,  6  Allen  (Mass.)  596. 
ii.  Commonwealth  v.  Certain  In-  Sufficiency  of  description  of  place 
toxicating  Liquors,  110  Mass.   116.  in  particular  cases.     Bee 

12.  state    v.    Certain    [ntoxicating  Indiana. — Rose  v.  state  (Ind,  S.  C. 

Liquors,  64  Iowa  300,  20  X.  W.  445,  1909),  87   N.   E.  103. 

following    State    v.    Harris,    36    Iowa  Maine—  State  v.  Minnehan.  83   Me. 

136.  310,  22   Ail.   177. 


588 


SEARCH    AND    SEIZURE    LAWS. 


[§  527 


plied  with.15  And  a  constitutional  provision  that  "  a  special 
designation  of  the  place  to  be  searched  "  shall  be  made  is  not  an- 
swered by  words  which  if  used  in  a  conveyance  would  not  convey 
it  and  which  would  not  confine  the  search  to  one  building  or  place.16 
It  may  be  stated  generally  that  the  description  of  the  place  in  a 
complaint  and  warrant  is  sufficiently  certain  if  it  be  such  as  would 
be  required  in  a  deed  to  convey  a  specific  parcel  of  real  estate.17 
The  word  "  place  "  as  used  in  a  statute  requiring  a  description  of 
the  place,  should  receive  reasonable  construction,  not  so  broad  as 
to  encourage  a  looseness  of  procedure  nor  so  narrow  as  to  prevent 
a  search  of  the  entire  premises  occupied  and  used  by  a  person  in 
the  ordinary  course  of  his  business  as  an  innkeeper.18  And  a 
requirement  that  a  place  shall  be  described  "  as  nearly  as  may  be  " 
is  construed  as  meaning  as  nearly  as  the  circumstances  will  admit, 
and  in  general  the  place  should  be  described  with  such  reasonable 
particularity  as  to  make  it  distinguishable  from  all  other  places.19 


Massachusetts. — Commonwealth  v. 
Certain  Intoxicating  Liquors,  122 
Mass.  8;  Commonwealth  v.  Certain 
Intoxicating  Liquors,  122  Mass.  36; 
Commonwealth  v.  Certain  Intoxicat- 
ing Liquors,  117  Mass.  427;  Common- 
wealth v.  Certain  Intoxicating  Liq- 
uors, 116  Mass.  27;  Commonwealth 
v.  Certain  Intoxicating  Liquors,  110 
Mass.  182;  Commonwealth  v.  Certain 
Intoxicating  Liquors,  107  Mass.  216; 
Commonwealth  v.  Certain  Intoxicat- 
ing Liquors,  6  Allen  599. 

forth  Dakota.— State  v.  Markuson, 
7   \".  D.  155,  73  N.  W.  82. 

Vermont. — State  v.  Liquor,  Drew, 
38  Vt.  387. 

An  averment  in  a  complaint  and 
warrant  for  the  search  of  a  dwelling 
house  that  it  was  occupied  by  the  de- 
fendant "  as  a  place  of  common  re- 
sort kept  therein  "  is  sufficient.  Com- 
monwealth   v.   Leddy,    105  Mass.   381. 

But  an  averment  in  a  complaint  for 


the  search  of  a  dwelling  house  that 
"  the  same  is  a  place  of  common  re- 
sort "  is  insufficient  to  describe  that 
"  a  place  of  common  resort  is  kept 
therein."  Commonwealth  v.  Certain 
Intoxicating  Liquors,  97  Mass.   332. 

15.  State  v.  Santo,  2  Iowa  165,  63 
Am.  Dec.  487. 

16.  State  v.  Robinson,  33  Me.  564. 

17.  State  v.  Bartlett,  47  Me.  388. 
The  description   in  a  warrant  of  a 

place  to  be  searched  should,  it  is  de- 
clared in  an  early  case  in  this  state, 
be  as  certain  as  would  be  necessary 
in  a  deed  to  convey  such  place. 
Jones  v.  Fletcher,  41  Me.  254,  holding 
that  where  a  warrant  commands  an 
officer  to  search  for  liquors  in  a 
dwelling  house  he  is  not  thereby  au- 
thorized to  search  in  a  barn. 

18.  State  v.   Liquor,  Drew,   Claim- 
ant, 38  Vt.  387. 

19.  Gray  v.  Davis,  27  Conn.  447. 


e    -ogj  BEAR<  II    AND    SEIZURE    LAWS.  589 

So  a  constitutional  provision  that  a  search  warrant  shall  describe 
"  as  nearly  as  may  be  the  place  to  be  searched,"  has  been  held  to 
require  that  the  description  be  as  near  as  the  circumstances  will 
permit,  according  to  the  nature  of  the  property  or  thing.20  Bu1 
where  the  statute  required  the  place,  person  and  property  to  be 
described  "  as  particularly  as  may  be,"  and  it  was  contended  that  if 
the  complainant  described  them  as  particularly  as  he  could,  or  as 
he  knew  how,  this  was  sufficient,  however  loose  and  indefinite  it 
might  be,  the  court  declared  that  this  was  giving  a  false  and  un- 
necessary sense  to  the  words  which  seemed  to  convey  the  idea  of 
the  greatest  degree  of  certainty  and  could  not  be  construed  as  in- 
tended to  loosen  the  particularity  required.21 

§  528.  Description  of  place  to  be  searched— continued 

If  the  description  of  the  place  to  be  searched  leaves  no  discretion 
to  the  officer  as  to  what  place  he  will  search,  but  directs  him  in 
that  respect,  it  is  sufficient.22  And  where  the  description  in  the 
complaint  of  the  place  where  the  liquors  are  kept  is  particular  and 
complete  and  amply  adequate  for  its  identification,  the  certainty 
and  sufficiency  of  that  description  will  not  be  affected  by  an  er- 
roneous and  immaterial  averment  as  to  the  occupants  of  the  place 
or  by  allegations  of  the  ownership  and  custody  of  the  liquor.23 

20.  State  v.  Snow,  3  R.  I.  64.  the  place  designated  in   his   warrant, 

21.  Santo  v.  State,  2  Iowa  165,  212,  a  cask  of  liquor  answering  to  this 
63  Am.  Dec.  487.  description    in    every    particular,    hut 

22.  State  v.  Intoxicating  Liquors,  in  the  custody  of  a  stranger  who 
44  Vt.  208.  claimed  to  be  its  owner,  or  in  the  ac- 

2:5.  Gray  v.  Davis,  27  Conn.  447.  tual  custody  of  the  plaintiff  and  in- 
The  court  said:  "Suppose  the  war-  tended  to  be  sold  by  him.  Or  sup- 
rani  described  the  liquor  by  specific  pose  the  officer  finds  in  the  place  des- 
name  and  quantity,  and  the  vessel  ignated,  a  cask  of  liquor  answering 
containing  it  by  size,  form,  material,  to  the  description  in  the  warrant,  but 
color,  artificial  marks,  etc.,  with  '  cer-  not  in  the  visible  custody  or  posses- 
tainty  to  a  certain  intent  in  every  sion  of  any  one.  Could  the  officer  be 
particular'  but  had  added  as  in  this  subjected  as  a  trespasser  for  taking 
warrant  that  the  liquor  was  owned  or  the  cask  of  liquor,  in  either  of  the 
kept  and  intended  to  be  sold  by  H.  K.  cases  put.  if  it  should  afterwards  ap- 
And  suppose  that  the  officer  found,  in  pear  that  the  allegations  in  his  war- 


590  SEARCH    AND    SEIZURE    LAWS.  [§    529 

Under  a  statute  providing  that  in  such  proceedings  the  complaint 
and  warrant  shall  set  out  fully,  plainly  and  substantially  the  place 
to  be  searched,  the  allegation  of  place  in  a  complaint  has  been 
held  to  be  a  material  traversable  allegation  and  the  claimant  is 
held  to  have  the  right  to  require  proof  of  it  and  to  submit  this 
issue  to  the  jury.24 

§  529.  Description  of  place  to  be  searched — rules  illustrated. 

Designating  the  place  as  a  certain  tenement  situated  on  a  cer- 
tain street  and  of  a  certain  number  is  sufficient.25  And  a  mis- 
description of  the  premises  as  to  number  is  not  fatal  where  there  is 
sufficient  in  the  complaint  and  warrant  to  clearly  identify  them.20 
And  though  a  street  in  which  the  premises  are  located  is  desig- 
nated by  a  name  other  than  that  which  the  municipal  authorities 
have  given  to  it  this  is  not  fatal,  as  proof  is  admissible  to  show 
that  it  was  known  by  one  name  as  well  as  the  other.27  So  though 
a  street  is  misnamed  in  the  warrant  in  describing  the  place,  the 
warrant  is  not  thereby  invalidated  if,  in  other  respects,  the  place  is 
truly  described  and  so  as  to  identify  it  with  the  place  described  in 
the  complaint.28  Again  a  description  of  the  place  to  be  searched 
by  giving  the  owner's  name  and  the  kind  of  liquors  which  he  was 
believed  to  have  kept  has  been  held  sufficient.29  And  where  the 
place  where  the  liquors  were  kept  was  described  in  the  complaint 

rant  regarding  ownership,  custody  or  26.  Commonwealth  v.  Certain  In- 
criminal  intent,  were  false?  We  toxicating  Liquors,  122  Mass.  36. 
think  he  could  not.  Upon  the  whole  27.  Commonwealth  v.  Certain  In- 
we  think  these  allegations  no  part  toxicating  Liquors,  113  Mass.  208, 
of  the  description  of  the  liquor,  that  holding  that  evidence  of  persons  liv- 
it  is  immaterial  whether  they  were  ing  in  the  neighborhood  and  using  the 
true  or  false,  that  the  description  of  street  for  years,  that  they  never  heard 
the  liquor  was  sufficient,  and  conse-  it  called  by  another  name  than  that 
quently  that  the  charge  to  the  jury  given  in  the  complaint  is  sufficient, 
was  wrong."     Per  Sanford,  J.  28.  Downing    v.     Porter,    8     Gray 

24.  Commonwealth    v.    Certain    In-  (Mass.)  539. 

toxicating  Liquors,  117  Mass.  427.  20.  State    v.    Thompson,    44    Iowa 

25.  Commonwealth    v.    Intoxicating       399. 
Liquors,  150  Mass.  164,  22  N.  E.  628. 


§§  530,531]  SEARCB    AND    SEIZURE    LAWS.  591 

and  warrant  as  a  brick  store  and  the  front  and  principal  pari  of  the 
store  was  of  brick  bu1  the  liquors  were  kepi  and  were  seized  in  a 

wooden  addition  in  the  rear  which  communicated  with  the  main 
room  by  a  door  and  the. store  was  also  known  in  the  neighborhood 
by  the  name  of  the  "  brick  store,"  it  was  held  thai  the  place  suffi- 
ciently answered  the  description  in  the  warrant.80  So  where  the 
complaint  averred  that  intoxicating  liquors  were  kept  by  a  certain 
person  in  a  "  hotel  and  barn  "  on  the  north  side  of  the  street,  in  a 
certain  town,  "  known  as  the  Valley  House  and  barn  in  the  rear 
thereof,  next  east  of  the  bakery  building  occupied  in  part"  by  a 
designated  person  and  the  averments  of  the  complaint  were  recited 
in  substance  in  the  warrant  it  was  held  that  the  building  to  be 
searched  was  sufficiently  described.31  But  where  the  only  descrip- 
tion of  the  place  where  the  liquors  are  kept  and  deposited  is  "  in 
a  valise  in  the  possession  of  "  a  certain  person  in  a  certain  city, 
it  is  not  sufficient.32 

§  530.  Time  of  service  of  warrant. 

The  service  of  a  search  warrant  need  not  be  limited  to  the 
day-time.33  Where  there  is  no  requirement  in  the  statute  that  to 
authorize  a  search  in  the  night  time  the  warrant  shall  contain  a 
direction  to  that  effect,  a  general  direction  to  search  without  any 
restriction  as  to  time  is  sufficient  authority  to  make  a  search  in  the 
night  time  as  well  as  in  the  day  time.34 

§  531.  Search  and  seizure  without  warrant — generally 

A   search   without    a    warrant    is    in   some   cases   authorized    by 


so.  Lowrey    v.    Gridley,    30    Conn.  locality    and    thai    the   word    is    not 

450.  broad  enough  to  cover  Bearch  for  and 

81.  Commonwealth    v.    Certain    In-  Beizure  of  liquors  in  a  valise, 

toxicating  Liquors,  146  Mass.  509,  16  •i:t-  State  v.   Brennan's   [iquors,  25 

X.   E.  298.  Conn.  27s. 

:vz.  state  v.  Fezzette,  103  Me.  4G7,  84.  State   v.    Bennett,   95   Me.    197, 

69   Atl.   1  c>T3,  holding  that   the  word  40   Atl.   867.     See  Commonwealth   v. 

"place"   lias   reference  ordinarily   to  Hinds,   145   Mass.   182,   13   X.   E.   397. 


592  SEARCH    AND    SEIZURE    LAWS.  [§   532 

statute.35  And  a  statute  is  constitutional  which  provides  for  a 
seizure  without  a  warrant  and  under  such  a  statute  it  has  been  held 
to  be  immaterial  whether  the  complaint  is  made  before  or  after  the 
seizure.30  The  authority,  however,  to.  seize  liquors  without  a 
warrant,  though  sometimes  necessary,  is  a  high  power  and  being  in 
derogation  of  a  common  law  right,  it  is  to  be  exercised  only  where 
it  is  clearly  authorized  by  the  statute  or  rule  of  law  which  warrants 
it.37  And  where  there  is  nothing  in  a  statute  authorizing  a  search 
and  seizure  without  a  warrant  the  court  will  not  enlarge  the  tenor 
of  the  act  by  giving  it  a  construction  which  dispenses  with  a  war- 
rant.38 

§  532.  Same  subject — allegations  in  complaint  and  warrant. 

Though  the  complaint  should  contain  a  recital  that  the  liquors 
"  are  still  kept  and  deposited  "  by  the  defendant,  yet  where  a 
seizure  has  been  made  without  a  warrant  it  is  not  necessary  to  in- 
sert in  the  complaint  a  false  recital  to  that  effect.39  So  where  an 
officer  has  taken  liquors  without  a  warrant,  his  complaint  for  a 
warrant  may  allege  that  the  liquors  were  unlawfully  kept  and 
deposited  in  the  place  when  and  where  he  found  them  and  that 
they  were  then  and  there  intended  for  sale  within  this  state  in 
violation  of  law.40  And  in  the  case  of  a  seizure  of  liquors  without 
warrant,  an  allegation  in  the  complaint  that  at  the  time  and  place 
of  seizure  the  place  being  described  as  within  a  specified  county, 
the  person  making  the  seizure  was  a  sheriff,  duly  qualified  to  serve 
a  warrant  in  such  cases,  is  a  sufficient  allegation  of  his  competency 

35.  State  v.  Bradley,  96  Me.  121,  51       2  Atl.  586,  56  Am.  Rep.  557. 

Atl.  816.  37.  Kennedy    v.    Favor,     14    Gray 

36.  State   t.    Intoxicating   Liquors,       (Mass.)   200. 

58  Vt.  594,  4  Atl.  229.  38.  Bound   v.    South   Carolina   Ry. 

It  is  competent  for  the  legis-  Co.,  57  Fed.  485. 

lature  to  provide  for  the  seizure  of  39.  State   v.    LeClair,   86   Me.    522, 

intoxicating   liquors    without   a   war-  30  Atl.   7. 

rant,  the  same  act  not  purporting  to  40.  State  v.   Dunphy,   79  Me.   104, 

confer  upon  the  officer  the  power  of  8  Atl.  344;  State  v.  McCann,  59  Me. 

search.     State  v.  O'Neil,  58  Vt.  140,  383. 


<   533]  SEARCB    AND    SEIZURE    LAWS.  593 

to  make  the  seizure.41  And  where  an  officer  has  seized  liquors 
without  a  warranl  it  is  nol  accessary  to  the  sufficiency  of  a  war- 
rant subsequently  issued  that  it  Bhould  contain  a  command  to 
Bearch  the  premise  s.42 

§  533.  As  to  arrest  of  person  having  liquors  in  possession. 

Where  the  statute  requires  the  officer  if  he  find  the  liquors  "to 
arr<  -t  such  person  or  persons  "  as  are  named  and  have  them  forth- 
with before  the  judge  or  justice  by  whom  the  warrant  wa-  issui  d, 
the  warrant  must  so  dired  him  and  if  it  does  not  the  proceedings 
are  unauthorized.43  And  where  the  complaint  under  the  Btatute 
requires  the  officer  to  seize  the  liquors  and  also  arresl  the  person 
in  whose  custody  they  are  alleged  to  be,  he  must  have  both  be- 
fore the  court,  when  the  proceedings  become  divided  and  are  two 
distinct  cases.44  So  where  the  liquors  are  seized  and  the  one 
in  whose  custody  they  are  is  arrested  and  such  person  may  be  prose- 
cuted criminally  in  a  separate  proceeding  his  acquittal  does  no1  en- 
title him  to  a  restoration  of  the  liquors  nor  will  a  condemnation  of 
the  liquors  necessarily  result  in  his  conviction.1"'  Upon  the  arrest 
of  a  person  for  violating  the  liquor  law  liquors  may  properly  be 
seized  for  the  purpose  of  using  them  as  evidence  againsl  him.46 
But  one  brought  before  the  court  as  owner  or  keeper  of  liquor 
seized  is  held  to  be  entitled  in  Vermont  to  cross-examine  and  pro- 
duce witnesses  and  to  be  heard  by  himself  and  counsel  without 
filing  any  claim  in  writing  or  giving  any  security.1' 

41.  State  v.  Erskine,  66  Me.  358.  officer  did  not  in  accordance  with  the 

Sufficiency    of    averment    in    com-  requirements    of    the    warrant    arrest 

plaint  of  officer's   authority  to   seize  or  give  any  reason   for  not   arresting 

without  a  warrant  ;   state  v.  Holland  the  person  in  whose  possession  the  liq- 

(Me.  1908),  71  Atl.  1095.  uora  were  found. 

i-\  stale    v.    LeClair,   86  Me.   522,  45.  State  v.    Miller.   48   Me.   576. 

30  Atl.  7.  ,,:-  Padgett  \.  Sturgis,  6  Ga.  App. 

43.  state  v.  Leach,  38  Me.  432.  544,  65  S.  E.  352. 

44.  State  v.  Miller,   is  MLe.  576.  ,7-  State    v.    Cntoxicating   Liquors, 
See  Heath  v.  Farnham,  53  Me.  172,  (State    v.    Jabbour),    72    Vt.    22,   47 

holding   that    judgment    will    not    be      Atl.  107. 
arrested   in   case  of   libel  because   the 


594  SEARCH    AND    SEIZURE    LAWS.  [§§    534,536 

§  534.  Arrest  without  warrant. 

A  statute  which  authorizes  officers  without  a  warrant  to  arrest 
any  person  found  in  the  act  of  illegally  selling  or  transporting 
intoxicating  liquors,  and  seize  the  liquors,  vessels  and  implements 
of  sale  in  the  possession  of  such  person,  and  detain  them  in  some 
place  of  safe  keeping  until  warrants  can  be  procured  for  the  trial  of 
the  person  and  the  seizure  of  the  liquors  is  constitutional.48  And 
if  in  the  case  of  the  seizure  of  intoxicating  liquors  without  a 
warrant,  a  respondent  is  arrested  at  the  time  of  the  seizure  and 
before  the  issuance  of  the  warrant,  even  if  such  arrest  is  illegal  it 
in  no  way  affects  the  validity  of  the  complaint  and  warrant,  and 
cannot  be  taken  advantage  of  by  a  respondent  charged  with  having 
intoxicating  liquors  in  his  possession  for  an  unlawful  purpose, 
either  before  or  after  conviction.49  But  to  justify  the  arrest  of  a 
person  without  a  warrant  on  the  ground  that  he  was  illegally  trans- 
porting liquors  the  officer  should  show  that  he  had  reasonable 
proof  at  the  time  that  such  person  was  illegally  transporting  them 
it  not  being  sufficient  that  such  officer  acted  in  good  faith  and  had 
reasonable  cause  to  suspect  this  was  true,  where  the  statute  only 
authorizes  such  action  in  cases  where  the  officer  has  or  can  obtain 
reasonable  proof.50 

§  535.  Effect  of  seizure  of  more  liquors  than  authorized. 

The  fact  that  an  officer  has  taken  more  liquors  than  are  described 
in  the  warrant  renders  the  seizure  only  ineffectual  as  to  the  liquor 
which  he  was  not  authorized  to  seize.  As  to  those  liquors  which 
the  warrant  directed  him  to  seize  it  is  valid.51 


48.  Jones  v.  Root,  6  Gray  (Mass.)  Liquors  (Mass.  S.  C.  1909),  89  N.  E. 
4.35.  See  also  State  v.  O'Neil,  58  Vt.  918.  The  court  said:  "This  principle 
140,  2  Atl.  580,  56  Am.  Rep.  557.  was  stated  and  followed  by  this  court 

49.  State  v.  Bradley,  90  Me.  121,  51  in  Commonwealth  v.  Intoxicating  Liq- 
Atl.  810.  uors,    113   Mass.   13,  20.     The  elaim- 

50.  Kennedy  v.  Favor,  14  Gray  ant  attempts  to  distinguish  that  case 
(Mass.)   200.  from   the   present  by   saying  that   in 

51.  Commonwealth   v.   Intoxicating  that  case  the  fact  of  the  seizure  of  the 


§§530,537]  SEARCH    AND    SEIZURE    LAWS.  595 

§  536.  Notice  of  seizure. 

Where  the  statute  specifies  thai  uotice  musl  issue  to  the  alleged 
keeper  of  liquors  seized  within  a  certain  number  of  hour-,  the  hours 
are  to  be  computed  exclusive  of  Sunday.52     Notice  to  the  agent 

in  whose  hands  the  liquors  were  when  seized  has  been  held  suf- 
ficient.68 And  a  recital  in  a  notice  to  claimants  thai  the  seizure 
was  made  under  a  warrant  issued  by  a  certain  courl  when  in 
fact  it  was  under  a  warrant  issued  by  a  special  justice  thereof, 

docs  not  invalidate  the  proceedings.54  A  claimant  who  has  ap- 
peared and  been  admitted  to  prosecute  his  claim  to  the  liquors 
seized  cannot  object,  after  a  verdict  of  forfeiture  to  defects  in  the 
service  of  notice  to  him.55 

§  537.  Claimants— effect  of  appearance— waiver  of  defects. 

One  who  appears  in  the  proceedings  as  a  claimant  cannot  object 
to  defects  in  or  omission  of  notice.56  So  in  one  of  the  earlier 
cases  in  Maine  it  was  decided  that  where  upon  a  warrant  author- 
izing search  for  and  seizure  of  intoxicating  liquors  as  being  kept 
and  deposited  for  illegal  sale,  such  liquors  have  been  seized  and 
libeled,  a  person  who  appears  generally,  and  files  his  claim  to  the 
said  liquors  or  a  part  of  them,  thereby  waives  any  defeel   in  the 

bay  water  did  not  appear  in  the  offi-  not   appear    or    notify    the   owner    bo 
cers  return  upon  the  warrant,  while  that  he  could  appear  the  consequences 
here  the  illegal  seizure  of  the  extra  must  fall  upon  11k-  latter. 
12  gallons  does  appear  upon  the  re-  54.  Commonwealth   v.    Intoxicating 
turn.     Bui  thai   is  a  distinction  upon  Liquors,  128  Mass.  72. 
a    matter    immaterial    before   us.      It  55.  Commonwealth    v.    Certain    En- 
follows  that    the  ((nut    had   jurisdic-  toxicating  Liquors,  13  Allen   (V 
tion  at   least  over  the  ale.  beer,  and  561;  Commonwealth  v.  Certain  [ntox- 
wine   described    in    the    warrant    and  icating  Liquors,  6  Allen  (Mass.)  596; 
taken   by  the  officer,   and   that    in    re-  See    $    537    herein    as    to    elTect   of 
fusing  to  dismiss  the  complain!   and  appearance. 

not  to  instruct  the  jury  as  requested  r,,f-  Campbell   v.   state    (hid.   S.  C. 

by  the  complainant    there  was   no  er-  1909),  87  X.    E.  212. 

ror."     Per  Hammond.  J.  A   claimant   of   Intoxicating   liquor 

r»2.  Commonwealth    v.    Certain    In-  which  has  been  Beized  cannot   dispute 

toxicating  Liquors,  !»7  Mn«.  col.  the   regularity   <>f   the   notice   t.>   ap- 

53.  Johnson    v.    Williams.    48    Vt.  pear   and    oppose    its    forfeiture   if  he 

565,   holding   that   if   such    agent    did  has    in    fact    received    notice   and    has 


596  SEARCH    AND    SEIZURE    LAWS.  [§    537 

monition  and  notice.57     And  where  a  claimant  appears  and  has 
been  heard  in  respect  to  the  forfeiture  of  the  liquor  it  has  been 
decided  that  the  statute  will  not  be  held  unconstitutional  as  to  him 
for  some  alleged  defect  therein  as  to  notice  to  the  owner.58     So  the 
fact  that  the  citation  contains  no  allegation  as  to  the  person  enter- 
taining a  criminal  intent  other  than  some  person  is  not  a  ground 
of  objection  thereto  especially  after  one  has  appeared,  been  heard, 
appealed  the  case  and  there  pleaded  in  bar  of  the  suit.59    So  where 
defendants  appeared  before  the  justice  and  had  a  trial  without 
testing  the  sufficiency  of  the  information  or  warrant  and  it  was  not 
assigned  as  error  in  the  affidavit  for  the  appeal  an  objection  thereto 
first  raised  on  appeal  was  held  to  be  properly  overruled.00     And 
when  the  respondent  in  a  lawful  search  and  seizure  process  has 
submitted  to  arrest  and  has  pleaded  in  court  to  the  complaint,  his 
subsequent  objections  to  alleged  deficiencies  in  the  return  of  the 
officer  upon  the  warrant  are  made  too  late.61     Again  where  on  a 
complaint  for  the  forfeiture  of  intoxicating  liquors,  the  person 
complained  against  does  not  appear  as  claimant,  but  consents  on 
the  record  that  the  liquors  may  be  destroyed  without  publication 
of  notice,  a  writ  of  error  brought  by  him  to  reverse  the  judgment 
will  be  dismissed  on  motion.62     But  while  a  general  appearance 
may  be  a  waiver  as  to  matters  of  form  it  is  not  as  to  jurisdictional 
defects  which  when  apparent  upon  the  face  of  process  render  it 
absolutely  void.63     Where  parties  appear  and  claim  liquors  seized 
they  become  severally  parties  defendant,  unless  claiming  a  joint 
interest,  and  each  has  a  separate  right  of  appeal.04 

appeared    generally.      Commonwealth  go.  Santo  v.  State,  2  Iowa  165,  63 

v.  Intoxicating  Liquor,  110  Moss.  182.  Am.  Dec.  487. 

r>7.  State  v.   Bartlett,  47   Me.   396.  01-  State  v.  Connolly,  96  Me.  405, 

See  also  State  v.  Miller,  48  Me.  576.  52  Atl.  908. 


62.  Leslie    v.    Commonwealth,    107 

Mass.  215. 

«:*•  State   v.   Whalen,   85   Me.   469, 

27  Atl.  348. 
™.  State  v.  Brennan's  Liquors,  25  64.  gtate  y    Burrow»a  Liquors,   37 


58.  State  v.  Intoxicating  Liquor 
(Vt.  1909),  73  Atl.  586,  citing  State 
v.  Intoxicating  Liquor,  44  Vt.  208. 


Conn-  279-  Conn.  425. 


§   538]  SEARCH    AND    SEIZURE    LAWS.  597 

§  538.  Power  and  liability  of  officer  serving — generally. 

A  precept  or  process  though  voidable  for  irregularity  or  mistake, 
is  a  protection  to  the  officer  who  serves  it,  if  the  magistral 
whom  it  was  issued  had  jurisdiction  of  the  subjeel  matt  So 

it  is  said  in  a  recent  case  in  Maine:  "  It  is  also  a  rule  of  law  too 
well  established  to  now  require  discussion  thai  for  reasons  founded 
on  public  policy,  and  in  order  to  secure  a  prompt  and  effective 
service  of  legal  process,  the  law  protects  its  officers  in  the  perform- 
ance of  their  duties,  if  tin  re  is  no  defect 'or  want  of  jurisdiction 
apparent  on  the  face  of  the  writ  or  warrant  under  which  they  act. 
The  officer  is  not  bound  to  look  beyond  his  warrant.  He  is  not  to 
exercise  his  judgment  touching  the  validity  of  the  process  in 
point  of  law:  but  if  it  is  in  due  form  and  is  issued  by  a  court  or 
magistrate  having  jurisdiction  of  the  case  or  subject  matter  he  is 
to  obey  its  commands.  The  defendant's  warrant  if  properly  exe- 
cuted was  a  complete  justification."  66  And  an  officer  is  not  liable 
for  his  official  acts  under  a  sufficient  warrant,  because  the  prosecu- 
tion fails  by  reason  of  the  repeal  of  the  law  by  virtue  of  which 
the  warrant  was  issued.07  But  ir  is  only  a  precept  which  appears 
upon  its  face  to  have  been  issued  by  competent  authority  that 
affords  a  justification  to  the  officer  who  executes  it.68  And  if  it 
appears  that  the  magistrate  has  no  jurisdiction  or  from  the  war- 
rant that  there  is  an  entire  want  of  authority  to  issue  it  in  the  par- 
ticular case,  and  that  no  cause  of  forfeiture  is  disclosed,  the  officer 


<;•">•  State  v.   McNally,  34  Me.  210.  deputy"  to  serve  may  be  executed  by 

As   to   officer  serving. — Where   a  a  deputy  of  the  sheriff  as  well  as  by 

warrant   is  served  by  the  officer  hav-  a    deputy   of  the   marshal.      State   v. 

ing  authority  by  law  to  serve  Imi   to  McNally,    34    Me.    210,   .">(■>   Am.   Dec. 

whom  it   is  not   directed   it   has  been  650. 

held  in  Maine  to  be  legally  amenable  As  to  fees   of   officers. — See  Fay 

at    any    time    before    final    judgment,  v.  Barker.  72  Yt.  .">."..  -17  At  1.  180. 

the  omission  of  Buch  direction  being  66.  Kalloch  v.  Newbeii   Ate.  1908), 

only  a  matter  of  form.    State  v.  Hall,  72  Atl.  736.     Per  Spear,  J. 

7<  Me.  37,  2  Atl.  546.  67.  Gray  v.  Kimball,  42  Me.  -200. 

A    warrant    which    the    statute    an-  <>s-  Guptill   v.   Richardson,   <'>2   Me. 

thorizes  "any  sheriff,  city  marshal  or  2.">7. 


>98 


SEARCH    AND    SEIZURE    LAWS. 


[§    539 

acting  under  such  warrant  cannot  be  protected.69  So  an  officer  is 
not  justified  by  a  warrant  which  does  not  show  that  the  justice 
took  the  testimony  of  witnesses  as  required  by  law.70 


§  539.  Power  of  officer — as  to  place  of  search. 

The  officer  in  making  the  search  should  confine  himself  to  the 
place  described  in  the  warrant.71  So  a  warrant  to  search  the 
dwelling  house  of  a  person  only  authorizes  the  officer  to  search 
the  house  in  which  such  person  lives  and  if  he  searches  a  house 
owned  by  such  person  but  hired  and  occupied  by  another  he  is 
guilty  of  trespass.72  And  a  warrant  to  search  "  a  certain  building 
*  *  *  and  the  outbuildings  within  the  curtilage  thereof  "  will  not 
authorize  a  search  of  a  building  which  is  not  in  the  same  enclosure 
with  the  one  specified.73  And  where  the  warrant  commanded  the 
officer  to  search  a  certain  designated  dwelling  house  it  was  held  that 
he  had  no  authority  to  search  a  barn.74  And  where  there  are  sep- 
arate tenements  in  the  same  building  a  warrant  to  enter  a  building 
described  as  occupied  by  a  certain  person  will  not  justify  the  officer 
in  entering  the  tenement  of  any  other  person.75     But  in  a  case  in 


60.  Thurston  v.  Adams,  41  Me.  419. 

70.  Jones  v.  Fletcher,  41  Me.  254. 
See  State  v.  Staples,  37  Me.  228. 

71.  Jones  v.  Fletcher,  41  Me.  254. 

72.  McGlinehy  v.  Barrows,  41  Me. 
74. 

73.  Commonwealth  v.  Certain  In- 
toxicating Liquors,   140  Mass.  287,  3 

x.  i:.  4. 

74.  Jones  v.  Fletcher,  41  Me.  254. 
The  court  said:  "It  contains  no  di- 
rect authority  to  search  the  plaintiff's 
barn.  The  barn  does  not  come  within 
the  terms  used  as  descriptive  of  the 
place  to  be  searched.  If  the  words 
used  in  the  warrant  had  been  used 
in  a  deed  of  conveyance  there  is  no 
evidence  in  the  case  tending  to  show 
that  the  barn  which  was  broken  into 
was   so   connected   with   the   dwelling 


house  then  occupied  by  the  plaintiff, 
that  it  could  with  legal  propriety  be 
regarded  as  passing  to  the  grantee 
under  such  description."  Per  May, 
J. 

But  a  warrant  to  search  a  certain 
dwelling  house  and  its  appurtenances 
occupied  by  a  defendant  is  held  suffi- 
cient to  authorize  the  search  of  a 
stable  upon  the  same  premises,  though 
such  stable  may  be  used  by  tenants 
of  the  defendant  in  connection  with 
him.     State  v.  Woods,  68  Me.  409. 

75.  Commonwealth  v.  Newton,  123 
Mass.  420. 

Examine  Commonwealth  v.  Leddy, 
105  Mass.  381,  holding  that  where  the 
house  was  described  as  occupied  by 
A,  an  officer  was  held  justified  under 
the  warrant  in  seizing  a  barrel  of  ale 


§   539]  SEARCH    AND    SEIZURE    LAWS.  599 

Maine  it  is  held  thai  on  a  warrant  to  search  for  Liquors  in  a 
dwelling  house  occupied  by  a  certain  person  the  officer  is  nol  liable 
as  a  trespasser  to  other  tenants  of  portions  of  the  building  for 
searching  their  premises  before  searching  the  rooms  of  the  person 
named.70  And  a  dwelling  house,  when  it  is  shown  thai  intoxicating 
liquors  are  kept  tin  rein  and  sales  made  therein,  may  properly 
be  regarded  as  a  shop  or  place  of  public  resorl  which  may  be 
searched  under  a  statute  forbidding  the  issuance  of  a  warrant  to 
search  a  private  dwelling  unless  it  appears  thai  some  part  or  all  of 
it  is  used  as  a  shop,  store,  hotel  or  place  of  public  resort.77  And 
where  a  warrant  directed  an  officer  to  search  for  and  seize  liquors 
in  a  certain  dwelling-house  in  which,  when  the  warrant  was  issued, 
they  were  kept  for  sale  and  concealed,  the  officer  was  held  justi- 
fied in  taking  them  from  a  wagon  in  which  they  wen-  being  cur- 
ried to  another  place  of  concealment.78  Again  an  officer  under 
a  warrant  for  the  search  of  intoxicating  liquors,  is  justified  in 
forcibly  breaking  and  opening  the  depot  of  a  railroad  in  which 
the  goods  are  stored,  after  the  usual  time  for  receiving  and  de- 
livering goods  at  the  depot,  if  such  forcible  entry  is  necessary  to 
the  execution  of  the  warrant.79  And  in  Maine  it  has  been  decided 
that  the  offense  is  committed  if  the  liquors  are  kept  and  deposited 
by  the  respondent  for  the  purpose  of  illegal  sale,  whether  so  kept 
and  found  in  the  building  indicated  in  the  warranl  or  in  another, 
and  that  though  the  warrant  do  not  authorize  the  officer  to  search 
such  other  building  and  though  he  may  be  liable  for  doing  so,  this 
will  be  no  defence  to  a  proceeding  for  the  forfeiture  of  the  liquor 
and  the  punishment  of  the  offender.80 


in  such  house  in  a  room  occupied  by  ~s-   State  v.  Whisky.  .".I    \\  II.  164. 

B.  such  barrel  having  a  faucet  which  "!(-  Androscoggin    Railroad    Co.   v. 

passed    through    a    partition    into    a  Richards,  41  Me.  233. 

room  occupied  by  A.  80.  State  v.   Plunkett,  64  Me.  534, 

76.  Paquet  v.  Emery,  87   Me.   215,  holding    that    where    the    liquors    are 

;>i!  Atl.  881.  found  by  the  jury  to  have  been  in- 

T7.  State  v.  Madison   (S.  D.  1000),  tended    for   illegal   sales   and   to   have 

122  N.  W.  647.  been    kept    by    the    respondent    with 


600  SEARCH    AND    SEIZURE    LAWS.  [§   540 

§  540.  Liability  of  officer  concluded. 

An  unauthorized  seizure  of  liquor  by  an  officer  is  violation  of 
law  will  entitle  the  owner  of  such  liquors  to  damages.81  Only 
those  liquors  can  be  condemned  which  are  brought  into  court  in  a 
lawful  manner  and  an  officer  cannot  defend  himself  against  a  suit 
for  illegally  taking  liquors,  upon  an  insufficient  warrant,  by  show- 
ing that  they  were  subsequently  libeled  and  the  forfeiture  of  them 
declared,  if  these  proceedings  were  initiated  by  such  defective  war- 
rant.82 So  where  liquors  other  than  those  described  in  the  warrant 
are  seized  the  officer  will  be  liable  in  an  action  therefor.83  But  in 
Arkansas  it  is  decided  that  the  fact  that  liquors  were  seized  under 
an  invalid  search  warrant  does  not  affect  the  court's  jurisdiction 
nor  entitle  the  owners  to  recover  the  liquors  or  their  value.84  And 
it  is  no  defense  to  the  criminal  prosecution  of  a  person  for  keeping 
liquors  for  sale  in  violation  of  the  law  that  the  officer  proceeded 
illegally  in  making  the  search  and  seizure.85  Where  the  legislature 
has  specified  the  cases  in  which  a  search  and  seizure  may  be  made 
without  a  warrant  such  enumeration  excludes  other  cases  and  an 
officer  to  justify  himself  for  such  procedure  without  a  warrant 
must  act  within  the  provisions  of  the  statute.86  In  the  case  of  liq- 
uor which  is  in  the  custody  of  a  receiver  of  a  federal  court  an 
officer  of  a  state  who  seizes  such  liquor  without  a  warrant  is  held 
to  be  in  contempt.87 

knowledge  of  the  guilty  purpose  it  is  dered  by  the  court  to  return  the  liq- 

no  defense  that  they  were  seized  upon  uors   to   him.      Walker   v.    Shook,   49 

an  illegal  warrant  or  that  the  officer  Iowa  264. 

exceeded  his  authority  under  it.  82.  Guptill   v.   Richardson,   62   Me. 

81.  Gaillard    v.    Cantini,    22    Fed.  257. 

493,  76  C.  C.  A.  699.  83    Arthur    v.    Flanders,    10    Gray 

In  an  action  against  an  officer  for  /Mass  )  107 
damages  by  the  owner  the  latter  must, 
it  has  been  decided  allege  and  prove 
that  he  owned  and  kept  the  liquors 
with  lawful  intent  and  not  for  the 
purpose  of  sale  contrary  to  law  and 

he  is  not  relieved  from  the  necessity  413. 

of  making  such  allegation  and  proof  87.  In  re  Swan,  150  U.  S.  637,  14 

by  the   fact  that  the  officer  was  or-  Sup.  Ct.  225. 


84.  Ferguson  v.  Josey,  70  Ark.  94, 
66  S.  W.  345. 

85.  State  v.  McCann,  61  Me.  116. 

86.  Reid  v.  Adams,  2  Allen  (Mass.) 


§S   541,542,543]    SEARCH    AND    SEIZURE    LAWS.  60] 

§  541.  Duty  of  officer  as  to  keeping  of  liquors. 

The  officer  making  the  seizure  is  only  bound  in  keeping  th<-  liq- 
uors to  use  thai  care  and  diligence  which  prudenl  men  use  in  the 
care  of  their  own  uoods.88  And  the  officer  Beizing  them  should 
hold  them  until  the  final  order  of  the  courl  and  in  the  absence  of  a 
statute  should  not  allow  them  to  be  receipted  for.  And  he  should 
not  permit  them  to  be  appraised  as  perishable  property.89  And 
the  delivery  by  an  officer,  who  has  seized  intoxicating  liquors  upon 
a  search  warrant  of  a  part  of  them  to  a  third  person  claimi] 
own  them,  the  delivery  being  made  with  the  assenl  of  the  alleged 
keeper  for  sale,  who  appeared  in  court  as  claimant  under  proceed- 
ings for  forfeiture,  does  not  render  the  seizure  of  the  remaining  liq- 
uors illegal  and  void.'"' 

§  542.  Acts  of  officer  de  facto. 

Where  the  act  of  an  officer  in  seizing  the  liquors  under  a  war- 
rant is  that  of  an  officer  de  facto,  performed  colore  officii  such  act 
is  valid  so  far  as  the  public  and  third  persons  are  concerned.91 
So  where  a  constable  under  a  warrant  directed  to  him  seized  cer- 
tain liquors  a  plea  in  bar  that  although  elected  a  constable  he  had 
never  executed  the  bond  required  for  the  faithful  performance  of 
his  duties  was  held  insufficient.92 

§  543.  Officer's  returns. 

The  officer's  return  may  be  read  before  the  jury  as  exhibiting 
what  is  to  be  proved  but  not  as  any  part  of  the  proof  to  sustain  the 


88.  Perkins  v.  Girds,  29  \"t.  343.  :>:{-  State   v.   Howley,   65   Me.    100. 

80.  State  v.  Barrels  of  Liquor,  47  The  court    said:    "Objection   is   made 

X.  ii.  369.  thai    the  officer's   return  on  a   Bearch 

!»<>•  Commonwealth   v.   Intoxicating  and  seizure  warrant   was  read  to  the 

Liquors,  113  Mass.  13.  jury.     It   should  be  read  before  them, 

91.  State  v.  Brennan's  Liquors,  25  in  the  opening  as  a  part  of  the  state- 
Conn.  27s.  men!    of  the  case,  but  should  not  be 

92.  State  v.  Brennan's  Liquors,  25  regarded  as  evidence  at  all.     The  offi- 
Conn.  278.  cer's  return   i-  a   part  of  the  all 


602 


SEARCH    AND    SEIZURE    LAWS. 


[§  544 


prosecution.93  Where  an  officer  in  his  return  says:  "By  virtue 
of  this  warrant  I  have  seized  liquors  "  describing  them  particu- 
larly and  in  the  same  way  in  which  the  warrant  describes  them 
the  ret  urn  will  be  good.  He  need  not  state  that  they  are  the  same 
liquors  as  are  described  in  the  warrant  as  this  is  implied  also  by 
the  statement  that  they  were  seized  by  virtue  of  the  warrant.94  An 
error  in  the  officer's  return  as  to  the  date  when  he  seized  the  liquors 
does  not  affect  the  legality  of  the  proceedings  so  as  to  permit  the 
owner  to  maintain  replevin  for  them  against  the  officer.95 

§  544.  Actions  to  recover  liquors  seized — replevin. 

Where  liquor  has  been  seized  by  an  officer  under  search  and 
seizure  process  it  is  a  general  rule  that  it  cannot  be  taken  from  the 
officer  making  the  seizure  under  a  writ  of  replevin.96  So  it  was 
decided  in  an  early  case  that  where  liquors  have  been  seized,  by 
virtue  of  such  a  statute,  under  valid  legal  process,  legally  served, 
the  owner  of  such  liquors  cannot  maintain  an  action  of  replevin 
against  the  officers  and  take  the  liquors  from  him,  while  that  pro- 


tion  to  be  proved  but  is  no  part  of  the 
proof  itself.  It  has  the  same  effect 
in  this  process  that  a  return  in  re- 
plrrin  has  in  that  process."  Per 
Peters,  J.,  citing  State  v.  Stevens,  47 
Me.  357;  State  v.  Lang,  63  Me.  215. 

Officer's  returns  upon  warrants  un- 
der the  search  and  seizure  process  are 
admissible  in  evidence  as  a  part  of 
the  records  of  judgments  and  under 
a  conviction  in  such  a  proceeding  the 
presumption  is  that  the  respondent 
had  in  his  possession  all  the  liquors 
so  described  in  the  officer's  return 
where  nothing  to  the  contrary  ap- 
pears.    State  v.  Lang,  63  Me.  215. 

94.  State  v.  Hall,  81  N.  E.  34,  16 
Atl.  320. 

95.  pving  v.  Nichols,  91  Me.  478,  40 
Atl.  329. 

96.  Lemp  v.  Fullerton,  83  Iowa  192, 


48  N.  W.  1034,  13  L.  R.  A.  408,  citing 
Funk  v.  Israel,  5  Iowa  438,  450,  State 
v.  Harris,  38  Iowa  242,  246  and  fol- 
lowed in  Anheuser-Busch  Brewing  Co. 
v.  Fullerton,  83  Iowa  760,  50  N.  W. 
56;  State  v.  Barrels  of  Liquor,  47 
N.  H.  369. 

Power  of  officer  to  consent  to 
judgment.— The  officer  who  made  the 
seizure  of  liquors  under  proceedings 
for  their  forfeiture  is  held  to  have 
no  authority  to  consent,  in  an  action 
of  replevin  for  the  liquors,  that  judg- 
ment be  entered  therefor  upon  pay- 
ment of  the  costs.  Fries  &  Co.  v. 
Perch,  49  Iowa  351,  holding  that  when 
it  had  been  made  to  appear  to  the 
court  that  the  agreement  for  the 
judgment  in  the  replevin  suit  had 
been  corruptly  made,  the  judgment 
should  have  been  set  aside. 


s   544]  SEARCH    AND    SEIZ1  RE    LAWS.  603 

cess  is  pending  as  liquors  so  seized  and  held  are  in  the  custody  of 
the  law."7  So  in  Arkansas  it  has  been  decided  thai  though  a 
circuit  clerk  is  not  authorized  by  law  to  issue  a  warrant  for  the 
seizure  of  liquors  illegally  kept  in  a  prohibited  district,  ye1  after 
liquors  have  been  seized  under  such  illegal  warrant  and  brought 
into  court,  the  owners  of  it  cannot  complain  in  a  replevin  pro- 
ceedings of  the  illegality  of  the  warrant.98  Liquors  seized  by  - 
process  in  accordance  with  the  provisions  of  the  law  are  in  cus- 
todia  legis.00  So  in  a  recent  case  in  Kansas  it  is  decided  that  re- 
plevin will  not  lie  to  recover  property  which  has  been  seized 
under  such  a  process  it  being  declared  that  the  proceeding  is  one 
in  rem,  that  the  property  is  in  cvstodia  legis,  and  that  while  the 
proceeding  is  pending  in  due  and  orderly  course  the  owner  of  the 
property  should  not  be  allowed  to  intervene  except  to  "  answer  the 
complaint  made  against  such  intoxicating  liquors"  as  provided  by 
statute.1  But  a  demand  for  intoxicating  liquors  upon  an  officer 
who  is  holding  them  without  legal  authority,  as  where  after  seiz- 
ing without  a  warrant,  he  holds  them  for  an  unreasonable  time  be- 
fore making  complaint  and  procuring  a  warrant,  is  sufficient  evi- 
dence of  a  conversion  to  maintain  trover.2  And  liquors  so  seized 
may  be  recovered  by  replevin  where  the  statute  so  permits.  In  this 
connection  in  a  recent  case  in  Texas  it  is  decided  that  if  the  stat- 
ute authorizing  the  search  and  seizure  is  held  to  be  unconstitutional 
the  bond  give  in  connection  with  the  proceedings  falls  with  those 


07.  Allen      v.      Staples,      6      Gray  Karr  v.   Stahl,  75  Kan.   387,  B9  Pac. 

(Mass.)  491,  citing  Isley  v.  Stubbs,  5  669,  and  distinguishing  In  re  Massey 

Mass.    293;    Smith    v.    Huntington,    3  Petitioner.  56  Kan.   120,  42   Pac.   365, 

jj   pp  78.  which  held  thai  an  action  of  replevin 

98.  O'Neal  v.  Parker,  83  Ark.  133,  would    lie    by    Baying    thai    this    de- 
103  S.  W.   165.  cision  was  expressly  based  upon  the 

99.  Rinf  v.  Nichols,  91  Me.  478,  40  absence  of  any   provision   in   the  nui- 
£t\    309  sance  statute  for  a  hearing  a<  to  the 

1.  Oreentree    v.    Wallace,    77    Kan.  rights  of  property  in  the  court  where 

149.  93  Pac.  598,  citing  State  v.  Me-  the  criminal  action  was  pending. 

Manus,    65    Kan.    720,    70   Pac.    700;  -•  Weston  v.  Carr,  71  Me.  356. 


604 


SEARCH    AND    SEIZURE    LAWS. 


[§    545 


provisions  and  is  not  enforceable.3  In  South  Carolina  it  has  been 
decided  that  an  action  of  claim  and  delivery  will  lie  to  recover  liq- 
uor seized  by  a  state  constable.4  A  statute  prohibiting  the  mainte- 
nance of  any  action  for  the  recovery  of  intoxicating  liquors  has 
been  construed  as  limited  in  its  application  to  liquors  held  in 
violation  of  law.5 

§  545.  Nature  of  proceedings  for  forfeiture — proceeding  in  rem. 

In  a  recent  case  in  Vermont  it  is  said  that  such  proceedings  are 
proceedings  in  rem  to  fix  the  status  of  the  property  and  therefore 
essentially  civil  and  not  criminal.6  And  a  similar  doctrine  pre- 
vails in  other  jurisdictions.7  In  North  Dakota,  however,  it  has 
been  decided,  under  the  statute  providing  for  the  destruction  of  the 
liquors  when  it  is  shown  that  a  nuisance  was  maintained,  that  the 
action  is  not  one  in  rem,  none  being  authorized  by  the  statute, 


3.  Dupree  v.  State  (Tex.  S.  C. 
1909),  119  S.  W.  301.  The  court 
said:  "  The  legal  effect  of  the  replevin 
bond  and  liability  upon  it  depend  en- 
tirely on  the  statute  providing  for 
the  seizure  and  must  fall  with  those 
provisions.  It  cannot  be  considered 
a  good  contract  under  the  common 
law.  because  it  was  not  voluntarily 
entered  into,  but  was  extorted  by  an 
unlawful  seizure,  and  for  the  further 
reason  that  there  is  no  such  liability 
as  it  expresses  outside  the  statute  it- 
self which  we  have  held  to  be  void 
in  those  parts  attempting  to  create 
such  a  liability."    Per  Williams,  J. 

4.  Moore  v.  Ewbanks,  66  S.  C.  374, 
44  S.  E.  971. 

5.  Lord  v.  Chadbourne,  42  Me.  429, 
66  Am.  Dec.  290. 

6.  State  v.  Intoxicating  Liquor 
(Vt.  1909),  73  Atl.  586. 

Such  proceedings  are  in  the  nature 
of  proceedings  in  rem  and  where  they 
are  regular  and  there  is  jurisdiction 
of    the    subject    matter    they    fix    the 


status  of  the  liquor.  Johnson  v.  Wil- 
liams, 48  Vt.  562. 

7.  Osborne  v.  State,  77  Ark.  439, 
92  S.  W.  406 ;  State  v.  Burrow's  Liq- 
uors, 37  Conn.  425 ;  Campbell  v.  State 
(Ind.  S.  C.  1909),  87  N.  E.  212; 
Greentree  v.  Wallace,  77  Kan.  149,  93 
Pac.  578 ;  State  v.  McManus,  65  Kan. 
720,  70  Pac.  700. 

Statute  as  to  construed.— A 
statute  providing  that  all  proceedings 
to  obtain  the  forfeiture  of  any  liquor 
under  the  acts  shall  be  held  to  be  pro- 
ceedings in  rem  and  not  criminal  pro- 
ceedings has  been  held  to  apply  to 
proceedings  pending  when  the  aet  was 
passed  and  in  such  a  case  to  author- 
ize a  justice  who  was  absent  from 
town  on  the  day  appointed  to  issue 
a  notice  to  the  defendant,  under  a 
statute  relating  to  civil  suits,  ap- 
pointing- another  day  for  the  trial 
and  to  proceed  therewith  on  the  day 
so  appointed.  Hine  v.  Belden,  27 
Conn.  384. 


g    -,,;]  SEA1M  II     AND    SEIZ1   RE    LAW-  605 

that  the  ultimate  object  of  the  statute  lb  to  provide  that  no  nuisance 
shall  be  maintained  ;  thai  in  case  of  the  death  of  the  defendant  the 
cour1  loses  jurisdiction  to  proceed  and  thai  the  title  to  the  liquors 
passes  to  the  defendant's  heirs.* 

§  546.  Same  subject — whether  civil  or  criminal. 

The  proceeding   for   the   condemnation   and   forfeiture  or   de- 
struction of  liquors  seized  under  search  and  Beizure  process  is  I 
to  he  a  criminal  one  in  Iowa.'-'    And  in  Massachusetts  it  is  decided 
that  the  proceeding  being  of  a  criminal  nature  the  allegation 
the  complaint  must  be  proved  beyond  a  reasonable  doubt.10     And 
in  Nebraska  it  is  held  that  such  an  act  and  the  procedure  there- 
under being  criminal  in  its  nature  it  follows  thai  a  provision  in  a 
bill  of  rights  providing  for  a  right  of  appeal  in  civil  cases  does 
not  apply.11    But  in  Vermont  it  is  decided  thai  the  proceeding  i-  a 
civil  one,  even  though  the  finding  involves  something  criminal,  and 
that  it  is  not  necessary  that  the  fact  that  the  liquors  were  kepi 
unlawful  sale  should  have  been  found  beyond  a  reasonable  doubt,  a 
fair  preponderance  of  evidence  being  sufficient.1-     And  a  similar 

x-  State    v.    McMaster,     L3    N.    D.  uors  seized   is   in   excess  of   his  civil 

58,  99  X.  W.  58.  jurisdiction,     state  v.  Arlen,  71   [owa 

!>•  Stat.-  v.  Arlen,  71    [owa  216,  32  216,  32  X.  W.  267. 

X.  \V.  -2t;7.  citing  stat.-  v.  Intoxicat-  io.  Commonwealth    v.    Certain    In- 

ing   Liquors,   40    Iowa    95;    Santo    v.  toxi eating  Liquors,  115  Mass.  H"2. 

State,  2  [owa   165;  Stat.'  v.  Bryan,  4  n-  Sothman  v.  State.  66  Neb.  302, 

Leva  349.  92   X.   W.   303. 

Being  such  an  action  the -late  after  12.  State   v.    Intoxicating    Liquors. 

a    trial   of  the  case   has   resulted   in  (Vt.  1909),  7::  Ail.  586. 

favor  of  the  owner  of  the  liquors,  it  ,:{-  kirklan.l  v.  state.  72  Ark.  171. 

being   found   that    they   were   not    kept  7s   S.   \V.  770. 

for   illegal   sale,   is  nol   entitled   to  an  Right  to  appeal.— In  Arkansas  a 

appeal.    State  v.  Intoxicating  Liquors,  proceeding    in    ran    againsl     liquors 

40  Iowa  95.  kepi    for   sale   contrary   to   law   in    a 

Value    of    liqnors    as    affecting  prohibition    .list  ri.  t     is    held    to    be    a 

jurisdiction.— The     authority     of     a  civil     action     from     which    an     appeal 

justice  of  the  peace  being  limited  only  may   be    taken    by   the   state   from   a 

in  a  civil  action  so  far  as  the  amount  final    judgmenl     of    a    justice    of    the 

involved   is  concerned   is   not   affected  peace.     White   V.   State.   SO  Ark.   598 

by  the  fact  that  the  value  of  the  liq-  !>s   S.   W.   377. 


t;iM;  SEARCH    AND    SEIZURE    LAWS.  [§§   547,548 

conclusion  is  reached  in  Arkansas,13  and  also  seems  to  be  favored 
in  Indiana.14 

§  547.  Proceedings  for  forfeiture  and  punishment  of  offender 
separate. 

Ordinarily  the  prosecution  of  the  owner  or  keeper  of  the  liquors 
and  the  proceedings  for  the  forfeiture  of  the  liquors  are  separate 
and  independant.15  So  a  statute  in  Indiana  has  been  recently 
construed  as  providing  for  separate  proceedings,  the  procedure  to 
punish  the  offender  being  distinct  from  that  in  respect  to  the  liq- 
uors, the  latter  proceeding  being  declared  to  be  in  the  nature  of  a 
libel  to  procure  the  condemnation  of  the  liquors.  And  under  this 
statute  where  the  defendant  had  been  convicted  a  judgment  order- 
ing the  destruction  of  the  liquors  was  reversed.16  So  the  pro- 
ceedings for  the  condemnation  and  forfeiture  of  liquors  which  have 
been  seized  under  such  a  statute  may  be  had  before  the  trial  or 
conviction  of  the  person  charged  with  manufacturing  or  selling 
such  liquors  in  violation  of  law.17  And  where  intoxicating  liquors 
have  been  seized  a  previous  conviction  of  the  owner  for  keeping 
such  liquors  is  not  a  bar  to  a  subsequent  prosecution  against  the 
liquors  themselves.18 

§  548.  No  defense  that  intent  was  that  of  agent  of  owner. 

The  liquor,  is  dealt  with  under  these  statutes  as  the  res  which 

14.  Rose  v.  State,  (Tnd.  S.  C.  *«•  Regadanz  v.  State,  171  Ind. 
1909),  87  N.  E.  103.  387,  86  N.  E.  449. 

15.  Campbell  v.  State,  171  Ind.  17«  State  v.  McManus,  65  Kan.  720, 
702,  87  N.  E.  212.  Regadanz  v.  70  Pac.  700.  Compare  Darst  v.  Peo- 
State  171  Ind.  387,  86  N.  E.  449.  pie,  51  111.  286;  2  Am.  Rep.  301. 

Libels  of  liquors  and  vessels  seized  18-  Sanders  v.  State,  2  Iowa  230, 
on  search  warrants  although  resulting  holding  it  to  be  an  error  to  refuse  to 
from  search  and  seizure  process  are  charge  the  jury  that  if  they  found 
separate  and  distinct  proceedings  from  the  evidence  that  the  owner  of 
therefrom  to  determine  whether  the  the  liquors  had  previously  been  con- 
liquors  are  forfeit.  State  v.  Intoxi-  victed  of  keeping  said  liquors  with 
eating  Liquors,  80  Me.  91,  13  Atl.  intent  to  sell,  they  must  find  for  the 
403.  defendant. 


§  549]  SEARCH    AND   SEIZ1  RE    laws.  ,;,i7 

is  itself  liable  to  offend  and  consequently  the  owner  cannot  defeat 
a  seizure  and  forfeiture  on  the  ground  thai  the  intent  to  sell  them 
unlawfully  was  that  of  his  agent  where  such  agenl  had  immediate 
charge  and  control  of  them.19  So  in  a  proceeding  againsl  liquor 
alleged  to  have  been  kept  in  a  prohibited  district  to  be  3old 
trarv  to  law,  it  is  no  defense  that  it  was  l.i-ini;  sold  by  an  a§ 
of  the  claimant  without  the  latter's  knowledge  and  againsl  his 
will,  as  the  liquor  is  contraband  and  subject  to  be  destroyed  when 
it  is  being  used  contrary  to  law,  no  matter  by  whom.  So  in  a  case 
in  which  this  question  arose  the  court  said:  "It  was  wholly  im- 
material as  to  who  owned  the  liquor,  or  what  his  purpose  concern- 
ing it  was.  The  statute  is  directed  against  the  liquor  itself  that 
may  be  kept  in  or  shipped  into  any  prohibited  district  to  be  sold 
contrary  to  law.  When  it  is  shown  as  it  is  here,  that  the  liquor  is 
being  sold  contrary  to  law,  the  nuisance  exists,  and  it  boots  not 
the  owner  to  say  that  it  was  being  sold  without  his  knowledge  and 
against  his  will.  The  fact  remains  that  the  agent  whom  the 
owner  entrusted  with  the  liquor  was  selling  it  contrary  to  law. 
The  proceeding  is  in  rem."  20 

§  549.  Finding  as  presumptive  evidence  of  unlawful  keeping — 
statutes. 
The  legislature  may  provide  that  a  probable  cause  for  a  prose- 
cution shall  be  sufficient  to  overcome  the  presumption  of  innocence  : 
and  the  finding  of  liquor  by  an  officer  as  contemplated  by  a  search 
and  seizure  statute  furnishes  evidence  of  a  probable  cause  if  not 
prima  facie  evidence  of  an  unlawful  intent  to  sell.21  And  a  pro- 
vision "  that  proof  of  the  finding  of  the  liquor  specified  in  the  com- 
plaint, in  the  possession  of  the  accused,  in  any  place  except  hi* 
private  dwelling  house,  or  dependencies  (or  in  such  dwelling-house 


i!>-  Commonwealth    v.    [ntoxicating      92  S.  W.  406.     Per  Wood,  J. 
Liquors.  163  Mass.   12,  39  X.  E.  348.  21.   Lincoln    v.    Smith.   27    Vt.    328. 

20.  Osborne  v.  Slate  77   Ark.  439,  22.  State  v.  Cunningham,  25  Conn. 


608 


SEARCH    AND    SEIZURE    LAWS. 


[§  550 


or  dependencies,  if  the  same  be  a  tavern,  public  eating  house, 
grocery,  or  other  place  of  public  resort)  shall  be  received  and 
acted  upon  by  the  court,  as  presumptive  evidence,  that  such  liq- 
uor was  kept  or  held  for  sale,  contrary  to  the  provisions  of  the 
ad  "  has  been  held  to  be  constitutional.22  The  statutory  pre- 
sumption arising  from  evidence  that  liquor  was  found  on  certain 
premises,  cannot  be  overcome  by  proof  that  the  owner  of  the  prem- 
ises, claiming  to  be  a  bailee  and  demanding  restoration,  did  not 
thus  keep  it,  but  it  must  also  be  shown  that  no  one  kept  it  for  that 
purpose.23 

§  550.  Evidence  generally. 

Although  for  the  conviction  of  a  defendant  it  should  appear 
that  the  liquors  seized  were  by  him  unlawfully  deposited  or  kept 
for  illegal  sale  yet  to  authorize  the  forfeiture  of  such  liquors  it 
need  only  be  shown  that  they  were  kept  with  such  intent,  proof  of 
the  one  by  whom  kept  for  such  purpose  not  being  necessary.24 


195.     The  court  said,  per  Waite,  C.  J., 
"  With  what  intent  a  person  keeps  in- 
toxicating  liquors    is    always   a   ques- 
tion of  fact  for  the  jury,  to  be  deter- 
mined upon  a  view  of  all  the  evidence. 
And    in    disposing    of    that    question 
they   are   required   by  the   statute   to 
consider  the  keeping  of  the  articles  in 
the  manner  specified  in  the  statute  as 
presumptive  evidence  of  an  unlawful 
intent.      But    that    evidence   may    be 
rebutted   and    controlled    by    the   cir- 
cumstances. .  .  .     With  such  evidence 
the  jury  may  also  take  into  considera- 
tion the  presumption  of  the  innocence 
of  the  accused.     It  has  been  said  that 
the  keeping  of  spirituous  liquors  is  a 
lawful  act,  and  being  such,  the  legis- 
lature has  no  constitutional  power  to 
make  it  evidence  of  an  unlawful  act. 
Many  acts  at  common  law  are  lawful 
and   yet  the  performance   of  them   is 
prohibited  by  the  legislature,  in  the 
legitimate  exercise  of  their  sovereign 


power.  Even  the  sale  of  such  liquors 
is  not  by  the  common  law  unlawful. 
It  is  only  made  so  by  statute.  And  if 
the  legislature  can  constitutionally 
prohibit  such  sale,  we  see  not  why 
they  may  not  properly  prescribe  what 
acts  shall  be  considered  as  evidence 
of  an  intent  to  make  the  sale." 

See  also  Santo  v.  State,  2  Iowa  165, 
03  Am.  Dec.  487. 

23.  State  v.  Intoxicating  Liquors. 
109  Iowa,  145,  80  N.  W.  230. 

24.  State  v.  Learned,  47  Me.  426. 
Examine  State  v.  Robinson.  33  Me. 

564,  holding  that  legal  proof  that  the 
liquors  were  kept  for  sale,  by  the 
owner  or  keeper  of  them  is  an  essen- 
tial prerequisite  to  a  decree  of  for- 
feiture (where  a  claimant  appears) 
and  to  the  imposition  of  a   fine. 

Evidence  insufficient  to  show  kept 
for  unlawful  sale.  See  Common- 
wealth v.  Intoxicating  Liquors,  105 
Mass.  595. 


551]  SEARCH    AND    SEIZURE    LAWS.  609 

Upon  the  question  of  intenl  to  unlawfully  sell  evidence  of  sales 
made  both  before  and  after  the  seizure  is  admissible.26  And  liq- 
uors which  were  seized  in  a  search  warrant  are  properly  admis- 
sible in  evidence  upon  the  trial  of  a  person  charged  with  Belling 
liquors  without  a  license  even  though  the  search  and  seizure  were 
illegal.20  So  in  a  rcent  case  in  Georgia  it  is  declare. 1  that  an 
officer  who  discovers  a  person  keeping  intoxicating  liquors  at  his 
place  of  business  may  am-st  him  without  a  wan-ant,  and  may  seize 
the  liquor  for  the  purpose  of  using  it  as  evidence.27  And  in  Minne- 
sota the  intoxicating  liquors  and  appliances  usually  used  in  the 
sale  thereof,  which  were  found  on  the  premises  of  a  defendant 
and  seized  by  virtue  of  a  search  warrant  have  been  held  com- 
petent evidence  on  his  trial  on  the  charge  of  keeping  a  Mind  pig.28 
In  a  liquor  seizure  case  the  proof  must  establish  the  liquor  to 
have  been  seized  in  the  town  where  alleged,  as  the  offense  is  local, 
and  it  is  a  variance  to  prove  that  it  was  seized  in  a  town  other  than 
that  alleged.29 

§  551.  Proceedings  for  forfeiture — judgment  for. 

To  render  valid  a  judgment  of  forfeiture,  under  such  an  act, 
the  parties  interested  in  the  subject  of  adjudication  should  be  in- 
formed of  the  nature  and  cause  of  the  charge  upon  which  the 
adjudication  is  to  be  made,  and  afforded  opportunity  to  answer 
and  defend.30  And  though  the  person  alleged  in  the  complaint  had. 
after  being  notified  and  appearing  and  claiming  the  liquors,  I 


26.  State    v.    Mead's    Liquors,    46  30.  State  v.  Snow,  3  R.  I.  64. 

Conn.  22.  A    claimant    to    seized    liquors 

26.  State  v.  Madison   (S.  D.  1008),  can  only  assert  such  right  th 

122  X.  \V.  047.  as  is  specifically  Bel  forth  in  his  writ- 

27.  Jenkins,  alias  Jinks  v.  State,  ten  claim  filed  with  the  magistrate 
4  C!a.  App.  859,  <i2  S.  E.  574.  citing  before  whom  the  proceedings  are 
Smith  v.  State,  3  Ga.  App.  326,  59  pending.  State  v.  Intoxicating 
S.  E.  934.  Liquors,  61  Me.  .V20. 

28.  State  v.  Stoffels,  89  Minn,  205,  The  fact  of  ownership  is  the 
94   N.  W.  675.  foundation   of   the   claim,   and  the 

29.  State  v.  Roach,  74  Me.  562.  claimant    need    n<>t    svt    forth    in    his 


(Jill 


SEARCH    AND    SEIZURE    LAWS. 


[§    551 


defaulted  it  was  held  that  this  did  not  authorize  the  court  to 
enter  a  judgment  of  forfeiture  without  trial  and  proof  of  the  al- 
allegations  of  the  complaint.31  To  justify  an  order  for  the  de- 
struction or  forfeiture  of  liquors  under  a  statute  providing  there- 
for where  kept  for  illegal  sale  it  is  not  sufficient,  to  justify  a  judg- 
ment therefor  to  find  that  they  were  kept  for  the  purpose  of  being 
sold  but  the  finding  should  be  that  they  were  kept  for  the  purpose 
of  illegal  sale.32  And  where  the  statute  refers  to  intoxicating 
liquors  kept  for  sale  the  jury  to  find  in  favor  of  condemnation 
must  find  both  that  the  liquors  were  intoxicating  and  were  kept  for 
sale  at  the  time  they  were  seized.33  And  in  Massachusetts  it  has 
been  decided  that  proof  that  the  liquors  seized  or  some  part  thereof 
were  owned  or  kept  or  deposited  by  the  person  charged  in  the  com- 
plaint is  essential  to  the  rendering  of  a  judgment  of  forfeiture.34 
In  the  case  of  the  condemnation  of  liquor  the  state  is  only  re- 
quired to  make  a  prima  facie  case  and  consequently  when  there 
is  no  evidence  in  defense  and  there  is  admissible  testimony  tending 
to  prove  that  the  liquor  was  intended  for  an  illegal  sale,  an  ad- 


claim  the  person  of  whom,  the  place 
where,  or  the  time  when  such  liquors 
were  purchased.  State  v.  Intoxicat- 
ing Liquors,  69  Me.  524. 

In  Mississippi  it  is  decided  that  the 
justice's  court  before  whom  the  pro- 
ceeding must  be  instituted  has  juris- 
diction to  order  the  destruction  of  the 
liquors,  without  regard  to  amount, 
where  no  claimant  appears,  but  that 
where  a  claimant  appears  the  circuit 
court  may  acquire  jurisdiction,  but 
only  as  to  the  property  claimed,  if 
only  a  part  is  claimed.  Holberg 
Mercantile  Co.  v.  State  (Miss.  1909), 
48  So.  622. 

Statutory  provision  directory. 
A  statutory  provision  that  the  officer 
making  a  seizAire  "  shall  forthwith 
proceed  to  prosecute  for  the  forfeiture 
thereof  "  is  directory  merely  and  will 


not  be  construed  as  meaning  that  the 
neglect  of  an  officer  to  prosecute 
speedily  will  exempt  liquors  for  for- 
feiture which  are  kept  for  sale  in 
violation  of  law  as  the  forfeiture 
depends  upon  the  breach  of  the  law 
and  not  upon  the  diligence  of  the 
officer.  In  re  The  Liquors  of  Hoxsie,. 
15  R.  I.  241,  3  Atl.  1. 

Time  of  trial  to  determine 
whether  property  should  be  forfeited 
under  Kansas  statute,  see  State  v. 
Foren,  78  Kan.  654,  97  Pac.  791. 

31.  Commonwealth  v.  Intoxicating 
Liquors,  113  Mass.  23. 

32.  State  v.  Harris,  36  Iowa,   136. 

33.  State  v.  Certain  Intoxicating 
Liquors,  92  Iowa  762,  60  N.  W.  630. 

34.  Commonwealth  v.  Reed,  162 
Mass.  215,  38  N.  E.  364. 


§    552]  SKAKCII     AM)    SKI/ILL     LAWS.  gjj 

judication  of  forfeiture  by  the  court  below  is  not  reviewable.88 
After  the  adjudication  the  owner  has  no  interest  in  the  liquors 
and  any  subsequent  misfeasance  or  misconduct  in  regard  thereto 
can  work  no  injury  to  him.8fl  What  was  libeled  is  ;i  question  for 
the  court  and  must  be  determined  by  the  libel  and  if  an  officer  has 
another  and  different  kind  of  liquor  instead  of  it,  such  liquor  has 
not  been  libeled.  The  decree  can  only  be  in  respect  to  the  liquor 
described  in  the  libel.37 

§  552.  Right  to  return  of  liquors  seized. 

Where  there  is  not  a  search,  seizure  and  forfeiture  statute  and 
liquors  have  been  seized  for  the  purpose  of  evidence  in  connection 
with  the  arrest  of  the  defendant  he  should  be  entitled  to  a  return  of 
the  same  when  they  have  served  the  purpose  for  which  they  were 
seized.38  And  where  liquors  have  been  unlawfully  seized  the 
owner  is  entitled  to  a  restoration.39  So  in  case  of  a  quashal  of 
proceedings  on  a  complaint  for  defects  in  matter  of  form  the  owner 
of  liquors  which  have  been  seized  is  entitled  to  an  order  for  their 
return.40  In  Nebraska  under  a  statute  there  in  force  upon  the 
rendering  of  a  verdict  finding  the  defendant  guilty  of  keeping  li- 
quors for  unlawful  sale,  the  court  may  order  the  destruction  of  the 
liquors  seized.  And  if  the  jury  find  that  only  a  part  of  the  liq- 
uors were  so  kept  they  may  so  state  in  their  verdict  and  the  de- 
fendant will  be  entitled  to  an  order  that  the  liquors  not  so  kept 
be  turned  over  to  him.41 

85.  State  t.   Intoxicating  Liquors,  39.  state   v.    Intoxicating   Liquors, 

58  Vt,  f,<)4,  4  Atl.  229.  98  Mo.  4ti4.  57  At  1.  798. 

36.  Johnson  v.  Perkins,  48  Vt.  572.  40.  Commonwealth    v.    Certain    In- 

37.  State  v.  Smith,  54  Me.  33.  toxicating  Liquors,   103   Mass.  4.14. 

38.  Padgett  v.  Sturgis,  G  Ga.  App.  41.  Riggs  v.  state  (Neb.  1909),  121 
544,  65  S.  E.  352.  N.  \\ .  588. 


612  PENALTIES. 


[§  553 


CHAPTEE  XXI. 

PENALTIES. 

Sectiox  553.  Statutes  as  to  penalties — generally. 

554.  Ordinance  as  to  penalties — generally. 

555.  Contesting  validity  of  ordinance. 

556.  Sales  to  minors. 

557.  Sales  by  druggists. 

558.  Nature  of  proceeding. 

559.  Who  may  enforce. 

560.  Officials  designated  cannot  delegate  power. 

561.  For  whose  benefit  recoverable. 

562.  Method  of  recovery  prescribed  by  statute. 

563.  Recovery  generally — proceeding  for. 

564.  Recovery — extent  of. 

565.  Persons  liable  for. 

566.  Liability  of  sureties  on  bond. 

567.  Complaint. 

568.  Answer. 

569.  Evidence — admissibility. 

570.  Evidence — burden  of  proof. 

571.  Defenses. 

572.  Where  violation  induced  or  procured  by  officials. 

§  553.  Statutes  as  to  penalties  generally. 

In  several  states  provisions  have  been  made  by  statute  for  the 
recovery  of  penalties  for  violations  of  the  liquor  law  or  particular 
sections  of  the  law. 

So  a  penalty  imposed  by  the  state  for  selling  liquors  without  a 
license  is  within  the  powers  conferred  upon  the  legislature  by  the 
constitution  of  the  state.1  And  a  statute  may  impose  a  heavier 
penalty  upon  a  person  who  has  already  been  convicted  for  the 
same  or  a  similar  offense.2 

1-  King  v.  Jacksonville,  3  111.  305.  2.  State  v.  Woods,  68  Me.  409. 


§§  554,555]  penalties.  613 

§  554.  Ordinances  as  to  penalties  generally. 

A  municipality  under  a  proper  delegation  of  power  may  require 
a  seller  of  liquors  to  take  out  a  license  and  provide  penalties  for 
failure  to  do  so.:{  And  where  a  municipality  prohibits  the  sal.-  of 
intoxicating  liquors  in  the  residence  portion  of  a  city,  and  provides 
that  licenses  previously  issued  shall  be  no  defense  in  an  action 
founded  on  the  ordinance,  the  payment  of  the  license  fees  to,  and 
the  retention  thereof  by  the  city  do  not  estop  the  city  from  the 
enforcement  of  the  same.4  And  an  ordinance  imposing  a  pen- 
alty for  its  violation  is  not  unconstitutional  because  no  provision 
is  made  for  a  jury  trial.5  But  an  ordinance  is  not  a  public  or 
general  law  and  in  an  action  to  recover  a  penalty  provided  for 
thereby  it  should  be  pleaded  and  proved.6  And  where  an 
action  of  debt  is  brought  for  violation  of  an  ordinance  it  is  held 
necessary  to  show,  in  order  to  justify  a  recovery  that  the  liquor 
was  sold  after  the  ordinance  took  effect.7 

§  555.  Contesting  validity  of  ordinance. 

In  an  action  for  a  penalty  the  defendant  may  contest  the  validity 
of  the  ordinance  imposing  it.8  So  in  such  an  action  it  is  decided 
that  an  answer  controverting  the  validity  of  the  ordinance  on  the 
ground  that  it  had  not  been  published  as  required  by  the  statute 

3.  Dentz  v.  City  of  Central,  1  Colo.  objection   applies    equally   to  acts   of 

323.     Sweet  v.   City  of  Wabash,   41  the  legislature  which  impose  penalties 

Ind.  7.  for  a  like  offense.     King  v.  Jackson- 
Penalty    not    a    tax.— A    penalty  ville,  3  111.  305. 

imposed  by  a  municipal  corporation,  •»•  shea  v.  City  of  Muncie,  14s  [nd, 

for    the    sale    of    liquor    without     a  14,  N.  E. 

license  is  not  a  tax.     An  objection  of  *>•  Hill    v.    Mayor    of    Dalton,    72 

such  a  character  is  said   in  an  early  Ga.   4.     See   State  v.  Conlin,  27    Yt. 

case  in  Ilinois  to  be  imaginary  and  31 S. 

without     foundation,    and    it     was    de-  <!•   Weiss-Chapman      Drup      Co.      V. 

clared  that  as  to  the  assumption  that  People,  3!»  Colo.  374,  89  Pac.  778. 

a   penalty   for   the   commission   of   a  ~-  Newlan   v.    President    and   Trus- 

nuisance    is    a    tax    unequal    in    its  tees  of  Town  of  Aurora.  17  111.  :i7'.». 

operation,    and    therefore    illegal,    it  8.   McNulty   v.   Toof,   11G  Ky.  202, 

was  sufficient  to  observe  that  the  same  75  S.  W.  258. 


G14  PENALTIES.  [§§  550,557 

might  be  filed  and  the  question  of  fact  investigated.9  But  an 
averment  that  an  ordinance  was  not  recorded  in  the  journal  on  the 
day  that  it  passed  is  not  sufficient,  it  not  being  averred  that  the 
proceedings  were  not  recorded  at  all,  and  the  statute  not  requiring 
them  to  be  recorded  on  such  days.10 

§  556.  Sales  to  minors. 

A  frequent  provision  of  penalty  statutes  is  one  allowing  a  re- 
covery by  a  parent  for  the  sale  of  intoxicating  liquor  to  a  minor. 

Where  the  statute  provides  for  the  recovery  in  an  action  of  tort 
of  certain  sum  by  a  parent  or  guardian  for  such  a  sale  the  amount 
so  provided  for  is  held  not  to  be  strictly  a  forfeiture  but  rather 
in  the  nature  of  fixed  and  liquidated  damages  which  may  be  re- 
covered by  the  party  injured  in  an  action  of  tort.11  An  allegation 
that  the  seller  knew  that  the  purchaser  was  a  minor  is  not  required, 
knowledge  of  such  fact  not  being  essential  to  liability  for  the 
penalty.12  And  in  a  complaint  to  recover  for  a  sale  to  a  minor 
an  allegation  that  the  defendant  was  licensed  need  not  be  proved 
but  may  be  rejected  as  surplusage.13  The  honest  belief  of  a  de- 
fendant, justified  by  appearances,  is  not  a  defense  to  such  an 
action  as  the  seller  is  bound  at  his  peril  to  know  whether  the  per- 
son to  whom  he  sells  is  within  the  prohibited  class.14 

§  557.  Sales  by  druggists. 

A  statute  so  far  as  it  punishes  a  druggist  for  a  violation  of  its 
provisions  by  fine  and  imprisonment  is  constitutional.15     Where 


9.  McNulty  v.  Toof,  11G  Ky.  202,  14.  Fielding    v.    La    Grange,     104 

7S  S.  W.  258.  Iowa  530,  73  N.  W.  1038,  citing  Dud- 

]<>.  McNulty  v.  Toof,  110  Ky.  202,  ley  v.  Santbine,  49  Iowa,  650;   State 

75  S.  W.  258.  v.  Ward,  75  Iowa  641,  36  N.  W.  7(1.--: 

11.  Day  v.  Frank,  127  Mass.  497.  Jamison    v.    Burton,    43    Iowa    282 ; 

1--  Jamison    v.    Burton,    43    Iowa  State    v.    Thompson,    74    Iowa     119, 

282.     See  also  Eoberge  v.   Burnham,  37  N.  W.  104. 

124  Mass.  277.  15«  Luton  v.  Circuit  Judge  of  New- 

13.  McNeil  v.  Collinson,  128  Mass.  aygo  County,  69  Mich.  610,  37  N.  W. 

313.  701,  holding  that  a  provision  for  the 


§  558]  PENALTIES.  615 

the  statute  requires  druggists  to  make  returns  of  their  sales  within 
a  certain  time  and  provides  a  penalty  for  a  failure  to  do  so  there 
must  be  a  compliance  therewith.1'1  And  where  such  a  report  was 
erroneous  in  several  particulars  and  an  amendment  to  the  answer 
was  allowed  stating  such  fact  and  that  it  was  the  result  of  mis- 
take on  the  part  of  the  defendant  it  was  held  that  the  amendment 
should  have  been  stricken  out  on  motion  because  in  an  action  of  law 
at  least,  the  penalty  of  the  statute  cannot  be  avoided  on  the  ground 
of  mistake.17  Where  an  ordinance  excepts  from  its  operation 
sales  made  by  druggists  in  good  faith  for  medicinal  purposes  in  an 
action  to  recover  for  a  violation  of  the  ordinance,  the  defendant  if 
he  relies  upon  such  exception  as  a  defense  must  bring  himself 
within  its  provisions.18 

§  558.  Nature  of  proceeding. 

The  proceeding  to  recover  a  penalty  is  in  the  nature  of  a  civil, 
and  not  a  criminal  suit.19  So  the  action  of  debt  provided  for  by 
the  liquor  law  has  been  held  to  be  in  the  nature  of  a  civil  action 
and  not  a  criminal  prosecution.20     And  in  Kentucky  it  has  been 


forfeiture  of  his   business  for  a  sec-  X.  J.  L.  217.    Compare  In  the  M 

ond  olTense  was  unconstitutional.  of  Sorenson,  29  Mich.  47r>. 

16.  State  ex  rel.  Braden  v.   Cham-  An  action  to  recover  a  penalty 
berlin,   74   Iowa   266,    37    N.   W.    326,  for  the  breach   of  the   condition 
citing    State    v.    AfcEntee,    OS    Iowa  of  a  bond   is   one   upon   a   conl 
382,    27   X.   W.   265;    Abbott  v.   Sar-  obligation  and  not  one  "to  recover  a 
tori,  "»7  Iowa  656,  11  X.  \Y.  626.  penalty     or     forfeiture     imposed     by 

17.  State  ex  rel.  Braden  v.  Cham-  statute"  within   the   meaning   of  the 
berlin,  74  Iowa  266,  37  X.  W.  326.  New    York    Code.      Lyman    v.    Gram- 

18.  Town    of    Flora    v.    Lee,    5    111.  ercy  Club.  28   App.   Div    (X.  Y.)    30, 
App.  629.  50  X.  Y.  Supp.  1004. 

19«  Weiss-Chapman     Dru£    Co.     v.  At  common  law  when  a   penalty 

People,    30    Colo.    374,   SO    Pac.    77S:  was    incurred    for    a    violation    of    a 

City  of  Canvelton  \.  Collins   (Ind.  S.  by-law  of  a  corporation  it   might   be 

C.  1900),  88  N.  E.  66:   Harp  v.  Com-  recovered    by    an    action    of    debt    or 

monwealth.  22  Ky.  Law  Rep.   1792,  61  assumpsit     in    any    court    of    general 

S.   W.   4(i7:    McCracken   v.    State.    71  jurisdiction.     Town  of  .Jacksonville  v. 

Md.    150.    17    Atl.    932;    Mitchell    v.  Block,  36  111.  507. 

State.    12    Neb.    538,    11    X.   W.   848;  May  be  either  by  a  civil  action 

Brophy  v.  City  of  Perth   Amboy.  44  or   by    a    complaint    in    criminal 


616  PENALTIES.  [§   559 

decided  that  an  action  by  the  commonwealth  to  recover  penalties 
for  violation  of  the  liquor  law  prohibiting  sales  on  Sunday,  is 
civil  both  in  form  and  nature  and  this,  notwithstanding  the  de- 
fendant is  entitled  to  certain  privileges  and  immunities  applicable 
to  criminal  proceedings  not  recognized  in  a  civil  suit.21  The  court 
said  in  this  case:  "  But  it  is  insisted  for  the  commonwealth  that 
because  in  civil  suits  for  the  enforcement  of  a  penalty  the  defend- 
ant is  entitled  to  certain  privileges  and  immunities,  such  as  free- 
dom from  giving  evidence  against  hmself,  the  benefits  of  the  plea 
of  not  guilty,  and  the  reasonable  doubt  instruction,  that,  therefore, 
the  claim  should  not  be  paid.  It  is  true  that  it  has  time  and  again 
been  recognized  that  the  defendant  in  a  civil  suit,  wherein  the  en- 
forcement of  a  penalty  is  sought,  is  entitled  to  certain  constitutional 
guaranties,  but  these  immunities  to  the  defendant  cannot  in  any 
wise  militate  against  the  nature  of  the  action,  and  that  is  the 
question  we  are  now  dealing  with.  The  legislature  clearly  had 
the  right  to  determine  the  nature  of  the  action,  subject  to  the 
immunities  guaranteed  by  the  constitution,  and,  where  a  penalty 
only  is  sought  to  be  recovered,  the  action  is  civil  and  is  tried  ac- 
cording to  the  provisions  of  the  civil  code,  although  no  answer  other 
than  the  plea  of  '  not  guilty '  is  required  of  the  defendant."  22 
But  in  an  early  case  in  Pennsylvania  the  proceeding  is  held  to 
be  a  criminal  one  in  the  name  of  the  commonwealth,  judgment  to 
be  for  the  penalty  prescribed ;  and  not  an  action  of  debt  in  the  name 
of  an  individual  suing  for  the  comonwealth  and  himself.23 

§  559.  Who  may  enforce. 

Where  by  statute  certain  officials  only  are  authorized  to  enforce 

form.— Packer  Petitioner,  32  Me.  37.  is    given    constitutes    a    misdemeanor 

20.  Strickland  v.  Bartow,  27  Mich.  and  is  punishable  as  such  or  not. 

68,   holding  that   a   statute   prohibit-  21.  James,    Auditor    v.    Helm,    129 

in;/  the  imprisonment  of  "  any  females  Ky.  323,  111  S.  W.  335. 

in    any    civil    action  "    applied    to    a  22.  Per  Lassing,  J. 

capias  issued  under  the  liquor  statute,  23.  Specht    v.    Commonwealth,    24 

whether  the  act  for  which  the  penalty  Pa.  St.  103. 


§   559]  PENALTIES.  617 

penalties  the  action  cannol  1"-  maintained  by  a  private  citizen.24 
And  in  the  absence  of  a  statute  so  allowing  no  art  ion  can  be  brought 
in  behalf  of  the  public  except  by  the  proper  public  a::ent.'-'r'  By 
statute  in  some  cases  the  righl  is  given  to  any  person  to  pn 
such  an  action  in  the  name  of  a  public  official,  the  objed  of  such  a 
statute  being  to  confer  the  privilege  of  enforcing  the  law  on  other 
parties  when  the  officer  in  whose  name  the  action  should  be  brought 
neglects  and  refuses  to  perform  his  duty.28  In  some  cases  the 
right  is  conferred  upon  any  citizen  of  the  county,27  or  upon  a  cit- 
izen for  benefit  of  school  fund,28  or  the  action  may  be  prosecuted 
by  a  town.29  Under  an  early  New  York  statute  it  was  decided 
that  actions  to  recover  a  penalty  brought  by  overseers  of  the  poor 
should  be  brought  in  the  individual  name  of  the  officer  folllowed 
by  his  official  title,  and  not  in  the  name  of  the  office  merely.30 
Under  earlier  decisions  in  Xew  York  the  rule  was  to  bring  the 
action  in  the  name  of  "  the  board  of  commissioners  of  excise  "  of 
the  county  and  not  to  mention  the  names  of  the  commissioners.31 
Where  a  plaintiff  suing  in  an  official  character  is  superseded  in 
office  after  the  commencement  of  the  term  at  which  the  cause  is 
tried,  but  before  the  trial,  there  is  no  objection  to  a  recovery  by 
the  plaintiffs  upon  the  record.32 

24.  Hess  v.  Appell,  62  How.  Pr.  29.  Inhabitants  of  New  Gloucester 
(N.  Y.)  313.  Sutter  v.  Fauble,  25  v  Bridgham,  8  Me.  60:  Smith  v.  Vil- 
Hun.   (ST.  Y)    195.  lage  of  Adrian,  1  Mich.  495. 

25.  Benalleck  v.  People,  31  Mich.  30.  Horton  v.  Parsons,  37  Hun. 
200.  (X-  Y.)    42. 

26.  Record  v.  Messenger,  8  Hun.  81.  Pomroy  v.  Sperry,  16  How. 
N.  Y.)  283.  Prac.    (N.   Y.)    211.   citing  Board   of 

27.  Church  v.  Higham,  44  Iowa  Commissioners  v.  Doherty,  16  How. 
482,  holding  that  any  citizen  of  the  Prac.  (N.  Y.)  46;  holding  thai  where 
county  might  institute  an  action  the  net  inn  was  brought  in  the  names 
for  a  forfeiture  to  the  school  fund  of  t ho  commissioners  the  summons 
against  one  who  sells  intoxicating  and  pleadings  might  be  amended  by 
liquors   to   a   person    in   the   habit   of  striking  out  the  names. 

becoming   intoxicated.  82.  Manchester    v.    Herrington,    10 

2«.  Stewart      v.      Waterloo      Turn  X.  Y.  164,  holding  also  that  in  Buch  a 

Verein,  71  Iowa  226,  32  X.  \V.  27").  case,  a  substitution  of  their  buco 

r>0  Am.  Rep.  786.  in    office    for    the    officers    who    were 


618 


PENALTIES. 


[§    560 


§  560.  Officials  designated  cannot  delegate  power. 

As  we  have  already  stated  where  the  statute  provides  what  officer 
or  officers  may  maintain  the  action  to  recover  a  penalty,  the  action 
must  be  brought  by  them.  And  where  such  officers  are  clothed  not 
with  a  mere  naked  authority  but  must  exercise  a  discretion  for  the 
public  good,  they  have  no  right  to  delegate  such  power  to  another. 
So  in  an  early  case  in  jSTew  York  it  was  decided  that  a  board  of 
excise  could  not  delegate  to  an  attorney  authority  to  bring  suits  at 
his  discretion  but  that  action  by  him  must  be  ratified  by  the 
board.33 


parties  is  optional  with  the  parties 
authorized  to  apply  therefor,  and  if 
they  do  not  apply,  the  case  may  con- 
tinue to  be  prosecuted  by  or  against 
the  original  parties. 

33.  Board  of  Excise  v.  Sackrider, 
35  N.  Y.  156.  The  court  said,  per 
Morgan,  J.,  "And  first  I  will  say 
that  there  is  no  authority  cited  to 
sustain  the  proposition  that  the 
board  of  excise  can  devolve  upon  an 
agent  or  attorney  the  right  to  deter- 
mine what  suits  shall  be  brought 
against  individuals  for  violation  of 
the  excise  laws.  The  duty  is  by  law 
cast  upon  the  board  of  commissioners. 
The  statute  provides  that  the  penal- 
ties for  violation  of  the  exercise  laws 
shall  be  sued  for  and  recovered  in  the 
name  of  the  board  of  commissioners 
of  excise;  and  in  case  of  neglect  for 
the  period  of  ten  days  after  complaint 
to  them  that  any  provision  of  the  act 
has  been  violated,  aecompaniel  by 
reasonable  proof  of  the  same,  any 
t  person  may  prosecute  in  their 
name.  2  Laws  1857,  pp.  414,  415,  sees. 
22  and  30.  This  action  was  not 
brought  under  the  authority  conferred 
upon  .Johnson  by  the  thirtieth  section 
of  the  act;  but  by  virtue  of  a  general 
authority  to  bring  such  suits  as  he 
thought  fit.     It  is  not  a  case  where 


the  commissioners  employ  an  attor- 
ney to  bring  particular  suits,  they 
themselves  having  first  considered  the 
question  as  to  the  propriety  of  the 
suits,  but  the  attorney  is  left  to  act 
in  the  place  of  the  board  of  commis- 
sioners and  determine  for  them  what 
suits  shall  be  brought.  The  commis- 
sioners substitute  the  attorney  in 
their  place  and  stead,  and  undertake 
to  depute  to  him  all  their  authority, 
so  far  as  they  have  authority,  to  de- 
termine any  question  as  to  the  pro- 
priety of  bringing  suits  against  in- 
dividuals for  violation  of  the  excise 
laws.  In  my  opinion  the  commis- 
sioners of  excise  are  clothed  with 
something  more  than  a  mere  naked 
authority;  they  are  intrusted  with 
an  office  which  requires  discretion, 
and  are  clothed  with  a  trust  which  is 
to  be  exercised  for  the  public  good. 
The  act  is  one  which,  except  as  other- 
wise provided  in  section  30  is  to  be 
performed  by  the  commissioners  them- 
selves. The  duties  of  the  office  in- 
volve a  trust  and  confidence  which 
they  cannot  assign  to  a  stranger. 
See  Story  Agency,  Sec.  5  et  seq.  6 
Bacon  Abr.  37,  title  Officers  and 
Offices  (L.),  Powell  v.  Tuttle,  3  N. 
Y.  396,  State  of  New  York  v.  City  of 
Buffalo,  2  Hill  434.    The  difficulty  is, 


§§  561,562]  PENALTIES.  6ig 

§  561.  For  whose  benefit  recoverable. 

The  disposal  of  the  moneys  so  received  by  the  state  or  munici- 
pality is  dependent  upon  the  statutes  or  ordinances  in  force.84  In 
some  states  it  goes  cither  in  part  or  in  whole  for  the  benefil  of  the 
school  fund.88  In  other  states  such  a  penalty  is  recoverable  for 
the  benefit  of  the  poor.86  And  in  .-Mine  cases  the  complainant  is 
entitled  to  a  part  of  the  penalty  or  tine.37 

§  562.  Method  of  recovery  prescribed  by  statute. 

Where  the  statute  prescribes  the  method  by  which  the  penalty 
may  be  enforced  it  can  only  be  recovered  in  the  manner  provided.88 
In  some  jurisdiction  the  recovery  can  only  be  by  a  civil  action,  the 
offense  being  punishable  by  fine  only  and  not  imprisonment.39  In 
some  cases  the  statute  provides  that  proceedings  for  the  recovery 
of  a  penalty  may  be  commenced  by  attachment.40  Again  the  re-- 
covery  of  the  penalty  so  provided  may  under  the  statutes  in  force 
be  recovered  by  indictment.41  A  defendant  may  waive  a  right  to 
have  the  proceeding  to  recover  brought  in  a  civil  action  as  where 
the  prosecution  proceeds  by  indictment  and  he  not  only  makes  no 


that    the    commissioners    here    under-  86.  Stewart      v.      Waterloo      Turn 

took    to    farm    out    the    business    of  Verein,  71   Iowa  226,   32  N.   \V.   275, 

bringing  suits  to  an  attorney  at  law  60   Am.   Rep.    786;    Jefferson   County 

without    first   determining   what   suit  v.  Reitz  McGuirk,  56  Pa.  St.  444. 

would  he  brought.     It  is  known  to  be  30.  Kingston      v.     Osterhoudt,     23 

a    profitable  business  to  lawyers,  and  Hun.  (N.  Y. )  66. 

if   the   practice   pursued   by   the  com-  37.  Hull    v.    Welsh,   82    Iowa,    117, 

missioners  in  this  case  is  to  be  toler-  47    X.    W.    982;    State   v.    Smith     64 

ated,    it    may    lead    to    great    abuse.  Me.   423;    Ricker    Petitioner,    32    Me. 

The  law  having  cast  the  duty  upon  :!7 ;    Webster    v.    Ball,    60    X.    II.    7: 

the  board  of  commisisoners  of  excise  Pierce  v.  County  of  Hillsborough,  57 

in  such  a  case  I  do  not  think  it  can  N.   H.   324. 

be  or  should  be  deputed  to  third  per-  38.  The   Druggist   Cases,   85   Tenn. 

sons."  449,  3  S.  W.  4.90. 

34.  State  v.  Noel,  73  Iowa   682,  35  •'»>•  State   v.  Carter.   18   Mo.  481. 

X.   \V.   922;    State  v.   Smith,   64  Me.  40.  State  v.  Johnson.  7J  Miss.  896, 

423;    Frame    v.    State,    53    Ohio    St.  17    So.   682. 

311,   45   N.    E.   5:    Commonwealth   v.  41.  People  v.    Hart.    1   Mich.   467. 
McGuirk,  78  Pa.  St.  298. 


620  PENALTIES.  [§§  563, 5G4 

objection  thereto  but  further  waives  his  right  to  object  by  an 
agreement.42 

§  563.  Recovery  generally — proceeding  for. 

It  is  not  essential  that  a  fine  should  be  imposed  before  a  suit 
may  be  commenced  for  its  recovery.43  And  an  act  may  be  both  a 
violation  of  the  conditions  of  a  liquor  dealer's  bond  and  also  a 
violation  of  an  ordinance  which  will  subject  him  to  the  penalty 
therefor.44  Penalties  given  by  different  sections  of  an  act  may  be 
sued  for  in  one  action.45  And  it  has  been  decided  that  though 
upon  the  conviction  of  a  person  for  a  violation  of  the  liquor  law 
the  court  may  properly  impose  the  penalty  affixed  by  law  for  such 
offense  yet  a  civil  action  must  be  brought  to  recover  the  pecuniary 
part  thereof.46 

§  564.  Recovery — extent  of. 

When  a  statute  only  provides  for  the  recovery  of  a  penalty  for 
a  violation  of  the  law  as  for  unlawful  sales  and  does  not  provide 
for  a  penalty  for  each  offense  there  can  only  be  a  recovery  of  one 
penalty  up  to  the  commencement  of  the  suit.47  And  though  the 
statute  imposes  two  penalties,  one  for  exposing  for  sale  and  one 
for  selling  it  has  been  decided  that  for  the  act  of  selling  there 
cannot  be  a  recovery  of  both  penalties,  as  the  one  single  act  will 
not  be  divided  into  two  offenses.48 

42.  State  v.  Uaruke,  48  Mo.  451,  statute  as  to  a  penalty  for  selling 
followed  in  State  v.  Cronyn,  48  Mo.  without  a  license  provides  that  a  re- 
480.  covery  shall  be  a  bar   as  to  offenses 

43.  King  v.  Jacksonville,  3  111.  305.  committed  before  such  recovery,  there 

44.  Whalin  v.  City  of  Macomb,  can  be  a  recovery  in  an  action  of  but 
70  111.  49.  one    penalty    though    several    distinct 

45.  Ripley  v.  McCann,  34  Hun.   (N.  offenses  are  proved. 

V.  i    112.  Under  a  statute  imposing  a  penalty 

46.  McCracken  v.  State,  71  Md.  upon  any  one  who  shall  sell  without 
150,   17  Atl.  032.  a    license,    it    has    been    decided    that 

47.  Flora  v.  American  Express  Co.,  several  distinct  penalties  may  be  re- 
92  Miss.  66,  45  So.  149.  covered   in   the  same  suit.     But   see 

See  Washburn  v.  M'Inroy,  7  Johns.  Deyo  v.  Rood,  3  Hill  (N.  Y.)  527, 
(X.    Y.)    134,   holding   that   where   a      holding  that 


§§  565,566] 


PENALTIES.  (521 


§  565.  Persons  liable  for. 

There  can  be  a  recovery  of  the  penalty  only  from  the  persi 
designated  in  the  statute  as  liable  therefor.49  The  action  being 
in  the  nature  of  a  tori  in  which  one  or  more  of  the  offending  parties 
may  be  sued,  the  fact  that  the  liquor  was  owned  by  three  and  that 
only  two  arc  sued  is  no  objection  to  a  recovery.60  Where  defen- 
dants united  in  committing  the  offense  for  which  the  recovery  of  a 
penalty  is  sought,  there  will  be  a  joint  liability.51  And  where  the 
circumstances  in  which  corporations  are  placed  is  identical  with 
those  of  natural  persons  expressly  included  in  a  statute  they  will 
be  considered  as  persons  and  liable  the  same  as  a  natural  person 
for  a  penalty."'2  But  where  a  statute  provides  for  a  penalty  for  a 
sale  to  a  minor  by  a  "  dramshop  keeper,  or  any  other  person  '*  il 
has  been  held  that  a  druggist  is  not  liable  for  the  penalty,  the  words 
"  or  any  other  person"  being  construed  as  applying  to  one  repre- 
senting a  dramshop  keeper,  when  taken  in  connection  with  the  resl 
of  the  statute  which  showed  an  intention  to  include  dramshop 
keepers  only.53 

§  566.  Liability  of  sureties  on  bond. 

Where  the  bond  given  by  the  licensee  is  conditioned  against 
a  violation  of  any  of  the  provisions  of  the  statute  and  that  the 
licensee  "shall  pay  all  damages  which  shall  be  recovered  from 
him  under  and  pursuant  to  the  provisions  of  said  acl  "  it  has  been 
decided  that  where  a  judgment  has  been  recovered  for  a  penalty, 
the  surety  on  the  bond  is  liable  therefor.54     But  in  a  case  in  [owa 


18.  City   of    Brooklyn    v.   Toynbee,  •">-•  Stewart      v.      Waterloo     Turn 

31  Barb.   (N.  Y.)   282.  Verein,   71    [owa   226,   32   X.   \V.  275, 

•»!>•   Bachman     v.     Brown,    57     Mo.  60    Aim.    Rep.    786,    <  it iiilt    Nales    v. 

\j,p.  68.  City     of     Muscat  int\     4     [owa,     202; 

50.   President    v.   Trustees  of  Jack-  South   Carolina    R.  Co.  v.  McDonald, 

sonville  v.  Eolland,  19   111.  271.  5  Ga.  531. 

.->«•  Ball    v.    McKechine,    22    Barb.  •"i:{-  Bachman    v.     Brown.    57    Mo. 

(N.  Y.)    244:   Ingersoll  v.  Skinner.  1  App.  68. 

Den.   (N.  Y.)   540.  54*  Day  v.  Frank.  127  Mass.  497. 


g22  PENALTIES.  [§    no- 

it  is  decided  that  the  sureties  on  a  bond  are  not  liable  for  a  penalty 
for  sales  to  minors.55 

§  567.  Complaint. 

In  an  early  case  in  Michigan  it  is  determined  that  more  partic- 
ularity is  required  in  a  declaration  to  recover  a  statutory  penalty 
than  in  some  other  common  law  actions  in  which  general  counts 
allowed  and  that,  in  the  absence  of  any  statutory  provision 
to  the  contrary  it  must  set  out  with  substantial  certainty  the  facts 
to  bring  the  defendant  within  the  terms  of  the  statute,  leaving  out 
no  element  of  liability  and  misstating  none,  and  it  must  aver 
the  obligation  to  have  arisen  under  a  statute.56  The  declaration 
should,  where  the  statutes  prescribe  a  form  contain  the  essential 
allegations  so  prescribed.57  Where  the  statute  contains  several 
provisions  the  declaration  should  refer  to  the  particular  section 
for  a  violation  of  which  it  is  sought  to  recover  the  penalty.58  But 
where  it  is  immaterial  under  the  statute  whether  the  violation  was 
by  a  sale  or  gift  or  by  the  defendant  or  his  agent  a  declaration  is 
not  demurrable  because  it  alleges  that  the  defendant  by  himself, 
his  servant  or  agent  did  sell  or  give.59     And  though  a  declaration 

P5.  Headington      v.      Smith,      113  57.  Benalleck   v.    People,    31    Mich. 

Iowa   107,  84  N.  W.  982.  200. 

no.  Benalleck  v.   People,   31    Mich.  Sufficiency  of  complaint  to  recover 

200.  penalty,  see  Weiss-Chapman  Drug  Co. 

Complaint  under  common  law.  v_  People,  39  Colo.  374,  89  Pae.  778. 

-In   New   York   it  has   been   decided  indorsement     on    snmmons—A 

that    in    a    complaint    framed    under  ^^  requiring  an   imlorsement   on 
the  common  law  it  is  sufficient  if  it 
sets   out    all    the    facts    necessary    to 


the   summons    of   the   section    of   the 
act     under     which     the     penalty     is 


the   offense  with   a  general   reference  ^.^    ^    begn    heW    t()    be  ^ 

to  the   statute.     Kee  v.   McSweeney,  cien%  comp]ied  with  where  the  in. 

15  Abb.  N.  C.   (N.  Y.)   229.  dorsement  refers  to  two  sections  by 

Names     of     persons     to     whom  numberg      Ripiey  v.  McCann,  34  Hun. 

sales   made. — The   complaint   should  .-^    -y  .    ,,„ 

allege   the   names   of   the   persons   to  ,,.  , 

,           ,,           ,                      ,               .  58.  Benalleck   v.    People,    31    Mich, 

whom    the    sale    was    made    or    give  * 

some  reason  or  excuse  for  the  omis-  200. 

sion.     Kee  v.  McSweeney,  15  Abb.  N.  50.  Hawer   v.   Eldridge,   171   Mass. 

C.   I  N*.  Y.)  229.  250,  N.  E. 


§§  568,569]  PENALTIES.  623 

or  complaint  may  be  defective  ye1  where  the  parties  a«>  to  trial 
thereon  without  objection  on  account  of  such  defects,  a  judgmenl 
in  favor  of  the  plaintiff  will  be  good.60  Again  where  a  verdict 
has  been  recovered  against  a  so-called  club  for  Belling  during 
prohibited  hours  it  will  not  be  set  aside  because  the  complainl  did 
not  negative  an  exception  in  the  statute  as  to  clubs,  the  exception 
not  being  absolute  and  it  being  necessary  to  avail  itself  of  such  ex- 
ception that  the  club  should  show  it  was  organized  in  good  faith 
and  that  it  distributed  liquors  among  its  memb  rs  as  provided  by 
the  act.61 

§  568.  Answer. 

Where  the  answer  admits  the  allegations  of  the  complaint  in  an 
action  for  a  penalty  for  the  violation  of  an  ordinance  and  -  - 
forth  the  effect  the  defendant  claims  such  ordinance  if  enforced 
will  have  upon  his  business  it  is  bad.'1-  And  in  an  action  to  n  c< 
the  penalty  for  sale  of  liquor  to  a  minor  under  a  statute  permitting 
one-half  to  go  to  the  informer  and  one-half  to  the  school  fund,  a 
demurrer  to  an  answer  was  held  to  be  properly  sustained  where 
the  answer  alleged  that  the  action  was  not  in  good  faith  but  for 
the  purpose  of  blackmail. ''""'  Where  an  ordinance  is  properly 
brought  into  a  case  by  a  complaint  to  recover  a  penalty  for  the 
violation  thereof,  such  ordinance  may  be  considered  in  determin- 
ing the  sufficiency  of  the  answer  though  not  set  out  therein.64 

§  569.  Evidence — admissibility. 

Tn  the  action  to  recover  a  penalty  for  selling  without  a  lie 
evidence  is  admissable  of  declarations  of  the  defendant  that  he  had 

o»o.  Hall    v.    McKechine,    22    Barb.  107,  84  X  W.  98z,  citing  McQuade  v. 

(N.  V.)  '244.  Collins,  93  Iowa  22,  61  X.  W.  213. 

61.  Cullinan  v.  Criterion  Club.  39  64.  Rowland  v.  city  of  Greencastle, 

Misc.  R.    (N.   V.)    -27().   X.   Y.    Supp.  157   [nd.  591,  82  X.  E.  474. 

«;•_».  city     of     Delphi     v.     Hamling  86.  Inhabitants  of  Xew  Gloucester 

(Ind.  S.  C.  1909),  89  X.  E.  308.  v.  Bridgham,  28  Me.  60. 

o.i.  Headington  v.  Smith,  113  Iowa 


624 


PENALTIES. 


[§  570 


kept  and  would  keep  spirituous  liquors  for  sale.65  And  evidence 
is  admissible  that  it  was  a  matter  of  common  report  and  public 
notoriety  that  intoxicating  liquors  were  sold  by  the  defendant.66 
And  the  fact  that  the  defendant  committed  the  act  which  renders 
him  liable  for  the  penalty  may  be  established  by  circumstantial 
evidence.67 

§  570.  Evidence — burden  of  proof. 

In  an  action  to  recover  a  penalty  for  selling  liquors  without  a 
license  it  has  been  decided  that  plaintiff  need  not  prove  defendant 
had  no  license,  which  will  be  taken  as  true,  unless  disproved  by 
defendant.68  So  in  New  York  it  has  been  decided  that  in  an  action 
to  recover  a  penalty  for  selling  without  a  license  it  is  not  necessary 
to  prove  the  disqualification,  the  onus  probandi  being  on  the  defen- 
dant.69 But  in  another  case  in  this  state  it  is  held  that  in  an 
action  to  recover  a  penalty  for  a  violation  of  a  city  ordinance, 
the  burden  of  proof  rests  upon  the  city.70  Where  a  sale  to  a  desig- 
nated person  is  alleged  the  proof  should  show  a  sale  to  the  person 
named  by  the  defendant  or  his  agent.71    But  in  an  action  to  recover 


66.  Cobleigh  v.  McBride,  45  Iowa 
116. 

67.  Vallance  v.  Everts,  3  Barb.  (N. 
Y.)  553,  holding  the  fact  that  the  de- 
fendant kept  liquor  in  his  grocery 
store,  to  sell,  is  competent  evidence 
to  show  sales  in  violation  of  law  in 
an  action  against  him  to  recover  the 
penalty. 

68.  Smith  v.  Village  of  Adrian,  1 
Mich.  495. 

«!>•  Potter  v.  Deyo,  19  Wend.  (N. 
Y. )  301,  wherein  the  court  said: 
"  Whether  the  defendant  had  a 
license  or  not,  was  a  matter  pecu- 
liarly within  his  knowledge,  and  I 
think  the  onus  probandi  lay  upon 
him.  This  is  like  an  action  to  re- 
cover penalties  under  the  game  laws, 
where    although    the    plaintiff    must 


aver  in  pleading  that  the  defendant 
was  not  qualified,  it  is  enough  for 
him  to  prove  the  killing  of  the  game 
and  it  lies  with  the  defendant  to 
prove  that  he  was  qualified."  Per 
Bronson,  J. 

70.  City  of  Buffalo  v.  Smith,  8 
Misc.  R.  (N.  Y.)  348,  28  N.  Y.  Supp. 
090,  holding  that  where  it  was 
sought  to  recover  a  penalty  for  viola- 
tion of  a  city  ordinance  by  a  saloon- 
keeper for  having  musical  perform- 
ances in  his  saloon  without  payment 
of  the  fee  required  to  entitle  him  so 
to  do,  no  presumption  existed  in 
favor  of  the  city  that  the  fee  had  not 
been  paid. 

71.  Village  of  Princeville  v. 
Hitchcock,  101  111.  App.  588. 


§§  571,572]  PENALTIES.  625 

a  penalty  it  is  not  necessary  that  the  ad  should  !"■  proved  on  the 
precise  day  alleged.72  And  where  an  ordinance  declares  places 
where  certain  liquors  are  sold  to  be  auisances  in  an  action  to 
recover  thereunder  it  need  not  be  shown  thai  the  liquors  mentioned 
are  intoxicating.73 

§  571.  Defenses. 

When-  a  penalty  is  prescribed  for  sales  to  a  prohibited  class  of 
persons,  the  fad  that  the  one  selling  or  giving  the  liquors  did  no1 
knew  that  the  person  receiving  them  was  of  that  class  does  not 
relieve  him  from  liability.74  And  in  an  action  to  recover  the 
penalty  for  an  unlawful  sale  of  liquor,  it  is  no  defense  that  the 
defendant  made  the  sale  as  the  servant  of  another  person.78  So  Li 
is  said  in  this  connection,  "  It  is  not  denied  that  the  sale  made  by 
defendant  was  unlawful,  but  the  defense  set  up  is  that  he  made  it 
not  on  his  own  account,  but  merely  as  the  servant  of  another  per- 
son; in  other  words  thai  another  person  gave  authority  i<>  the 
defendant  to  do  an  unlawful  act.  And  no  person  had  the  right 
to  give  such  authority,  ami  it  can  furnish  to  the  defendant  no 
protection."  7C  Again  in  an  early  case  in  ISTew  York  it  is  decided 
that  an  indictment  for  selling  spirituous  liquors  without  a  lio 
is  no  bar  to  an  action  for  the  penalty  given  by  statute  in  such 
cases.77 

§  572.  Where  violation  induced  or  procured  by    officials. 

Where  a  board  of  excise  for  the  purpose  of  ascertaining  an 
offen-e  under  the  excise  law.  and  bringing  to  conviction  the  offender 
employ  and  pay  informers  and  witnesses  to  go  upon  his  premises 

tz.  [nhabitants  of  New  Gloucester  75.  Roberts    v.    O'Connor.    33    Me. 

v.  Bridgham,  '2S  Me.  60.  4:n; 

7:t.  Laugel    v.    City    of    Bushnell,  -«..  RoheTta    v     o'Conner,    33    Me. 

197    111.   -20,  64   X.    E.   536,  affirming  „                  ,     _ 

t         i       t»    1.    ii   no  tii    a        mo  496«     Per  Howard,  J. 
Laugel  v.  Bushnell,  96  111.  App.  018. 

74.  Church    v.    Higluun,    44     Iowa  "    Blatchley   v.   MoBer,    15   Wend. 

482.  (N.  V.)    215. 


626 


PENALTIES. 


[§   572 


and  purchase  and  drink  spirituous  liquors  thereon,  the  seller  there- 
upon violates  the  law,  and  become  liable  to  its  penalty  where  he  has- 
no  license  from  the  state  to  protect  him.78  And  where  the  attorney 
of  an  incorporated  town  employed  on  his  own  account  a  private 
detective  to  procure  evidence  of  the  violation  of  the  town  ordi- 
onlinances  as  to  the  sale  of  liquors,  and  the  detective  gave  to  the 
prosecuting  witness  money,  but  without  any  direction  or  instruc- 
tion to  buy  whisky  therewith,  and  with  the  money  given  him  by  the 
detective  the  witness  purchased  whisky  from  the  defendant,  it  was 
heid  that  it  was  not  a  procurement  of  a  violation  of  its  ordinance 
by  the  town  or  its  officers  such  as  would  estop  the  town  to  prosecute 
the  defendant  therefor.79     But  in  an  early  case  in  Colorado,  it  has 


78.  Board  of  Commissioners  of  Ex- 
cise v.  Baehus,  29  How.  Proc.  ( N.  Y. ) 
33.  The  court  said  in  this  case:  "It 
is  finally  insisted  by  the  counsel  for 
the  defendant,  with  great  earnest- 
ness and  apparent  gravity,  that  the 
plaintiffs  cannot  recover  because 
they  are  particeps  criminis  with  the 
defendant  in  the  violation  of  a  penal 
statute.  *  *  *  But  in  order  to  shield 
a  confessed  guilty  party  from  the 
consequences  of  his  acts,  and  deprive 
the  plaintiff  of  the  remedy  he  seeks, 
it  is  essential  that  he  be  not  only 
a  '  particeps  criminis '  but  he  must 
be  in  '  pari  delicto,'  with  his  adver- 
sary. This  could  not  be  averred  of 
the  plaintiffs  in  this  suit,  were  they 
acting  in  a  purely  personal  and  pri- 
vate capacity,  and  seeking  and  ac- 
tually securing  to  themselves  some 
individual  benefit  or  advantage.  *  *  * 
The  drinking  of  the  liquor  upon  the 
premises,  or  procuring  a  party  to 
drink  it,  were  neither  of  them  acts 
evil  in  themselves,  or  condemned  by 
the  statute.  *  *  *  The  plaintiffs  are 
Miliject  to  no  penalty  but  the  defend- 
ant is,  and  the  delictum  not  being 
equal,    there    is    nothing    to    prevent 


the  remedy  provided  by  the  statute 
from  being  enforced  against  them. 
*  *  *  The  plaintiffs  are  in  effect  a 
corporation,  and  they  represent  in 
their  action  in  this  case  the  sovereign 
power  of  the  state  engaged  in  admin- 
istering and  enforcing  its  penal  laws. 
The  defendant  is  an  alleged  violator 
of  the  laws,  whose  detection  and  pun- 
ishment it  is  for  the  public  interest 
to  secure.  The  mode  the  plaintiffs 
adopt  to  compass  this  is  precisely  that 
which  the  state  or  any  of  its  func- 
tionaries, or  any  municipal  body  re- 
sorts to  when  it  offers  a  reward  for 
the  detection  of  crime,  promises  in- 
demnity to  a  co-adjutor  or  co-con- 
spirator; or  presents  pecuniary  in- 
ducements to  informers  to  testify 
by  agreeing  to  share  with  them  the 
spoils  of  victory  obtained  through 
their  aid.  This  has  never  been 
dreamed  of  as  a  good  plea  in  bar 
to  the  maintenance  of  an  indictment, 
or  any  action  whatever,  brought  in 
behalf  of  the  public  authorities  to 
punish  crime  or  collect  penalties  im- 
posed by  law."     Per  Bacon,  J. 

7».  People  v.  Chipman,  31  Colo.  90, 
71  Pac.  1108. 


nil' j 


PENALTIES. 


627 


been  decided  that  a  city  will  not  be  permitted  to  recover  a  penalty 
for  the  violation  of  an  ordinance  where  such  violation  is  induced 
by  the  city  through  one  of  its  officers.*". 


80.  Walton  v.  City  of  Canon  City, 
14  Colo.  Api>.  352,  59  Pac.  840.  The 
court  said:  "It  is  entirely  evident 
from  the  testimony  of  this  witness 
that  as  an  officer  of  the  city,  and  in 
behalf  of  the  city,  lie  contrived  a 
violation  of  its  ordinance,  and  that 
his  purpose  in  sending  Knight  to 
buy  the  beer,  was  to  involve  the  de- 


fendant in  a  liability  to  the  city.  We 
have  hold  that  public  policy  will  not 
not  permit  a  municipality  to  derive 
a  profit  from  act-;  which  an-  insti- 
gated by  its  officers."  Per  Thomson, 
J.,  citing  Ford  v.  City  of  Denver.  10 
Colo.  App.  500,  51  Pac.  1015;  People 
v.  Braisted,  13  Colo.  App.  532,  53 
Pac.  796. 


628  SALES    BY    SOCIAL    CLUBS. 


CHAPTER  XXII. 

SALES  BY  SOCIAL  CLUBS. 

Section  573.  Sales  by  social  clubs — generally. 

574.  Alabama. 

575.  California. 

576.  Colorado. 

577.  District  of  Columbia. 

578.  Georgia. 

579.  Illinois. 

580.  Indiana. 

581.  Iowa. 

582.  Kansas. 

583.  Kentucky. 

584.  Louisiana. 

585.  Maine. 
580.  Maryland. 

587.  Massachusetts. 

588.  Michigan. 

589.  Minnesota. 

590.  Mississippi. 

591.  Missouri. 

592.  Montana. 

593.  Nebraska. 

594.  New  Jersey. 

595.  New  York. 

596.  North  Carolina. 

597.  Oregon. 

598.  Pennsylvania. 

599.  South  Carolina. 

600.  Tennessee. 

601.  Texas. 

602.  Virginia. 

603.  Washington. 

604.  West  Virginia. 


§§  573,574]  SALES    BY    SOCIAL   CLUBS.  629 

Section   C05.  United  States. 
600.  England. 
007.  Conclusion. 

§  573.  Sales  by  special  clubs— generally. 

One  of  the  questions  upon  which  there  has  been  considerable 
discussion  and  concerning  which  the  courts  are  not  in  harmony.  U 
that  of  the  right  of  clubs  to  sell  or  dispose  of  intoxicating  liquors 
to  their  members.  In  order  to  place  the  question  before  the  pro- 
fession properly,  the  author  has  in  the  following  sections  en- 
deavored to  present  the  views  taken  by  the  courts  in  the  leading 
cases  upon  this  subject  in  the  various  states. 

§  574.  Alabama. 

A  transaction  whereby  an  incorporated  social  club  sells  liquors 
to  one  of  its  members  is  a  sale  technically  and  within  the  meaning 
of  a  statute  prohibiting  the  sale  of  vinous,  spirituous  or  malt 
liquors  without  a  license.1  And  where  there  was  a  general  law 
prohibiting  the  sale  of  vinous,  spirituous  and  malt  liquors  on  a 
Sunday  and  the  legislature  granted  a  charter  to  a  social  club  which 
contained  a  provision  that  the  disposal  of  such  liquors  by  the  club  to 
its  members  should  not  constitute  a  sale,  it  was  decided  thai  the 
provision  conferred  a  special  privilege  and  that  the  charter,  in  so 
far  as  that  part  was  concerned,  was  in  violation  of  such  a  constitu- 
tional provision  forbidding  the  granting  of  such  privileges.2  And 
likewise  under  such  circumstances  a  social  club  will  come  within 
the  operation  of  a  statute  forbidding  the  sale  of  such  liquors  on  ;i 
Sunday."'    And  in  a  case  in  Alabama  where  the  question  of  whether 

i.  Beauvoir  Club  v.  State  148  Ala.  where  it  is  said:  "The  evil  Intended 

043,  42  So.  1040,  citing  Martin's  Case,  to  be  corrected  by  the  act  in  question 

59  Ala.  34;  Manassas'  Case.   121  Ala.  is   the   keeping    open    mi    the    Sabbath 

501,  25  So.  028.  day  of  barrooms  or  other  places  where 

2.  Beauvoir  Club  v.  State,  148  Ala.  liquors  are  furnished  and  drunk,  and 
043,  42  So.  1040.  it    can    make    no    difference    whether 

3.  Beauvoir  Club  v.  State.  1  is  Ala.  few  or  many  persona  can  obtain  ad- 
043,  42  So.  1040,             L.  R.  A.  mission  and  buy  or  obtain  the  liquors 


SALES    BY    SOCIAL    CLUBS.  [§    575 

the  disposal  of  liquors  by  an  agent  of  a  club  to  none  but  members  of 
the  club  was  a  sale  within  the  meaning  of  the  license  laws,  the 
court  said :  "  There  can  be  no  question  that  the  ownership  was 
changed.  The  spirituous  or  vinous  liquors  were  the  property  of 
the  corporation.  By  the  sale  they  became  the  property  of  the  in- 
dividual, for  a  valuable  consideration,  paid  by  the  individual  mem- 
ber to  the  corporation  aggregate."  4  But  where  power  was  con- 
ferred upon  a  city  to  pass  ordinances  "  for  the  licensing  and  regu- 
lation of  retail  liquor  dealers,"  and  to  assess  and  collect  a  tax  from 
persons  or  corporations  "  trading  or  carrying  on  any  business,  trade 
or  profession,"  and  an  ordinance  was  passed  imposing  a  license 
tax  and  which  included  "  clubs  and  social  circles  where  liquors 
are  sold  to  members,  guests  and  visitors  "  it  was  declared  that  the 
business  intended  to  be  taxed  by  such  enactments  is  one  which  is 
carried  on  for  livelihood  or  profit  and  that  the  proof  was  insuffic- 
ient to  bring  a  club  within  either  the  meaning  of  the  ordinance  or 
the  charter  power,  the  facts  showing  no  disposition  of  liquors  except 
to  members.5 

§  575.  California. 

In  a  recent  case  in  California  it  is  decided  that  an  ordinance 
which  imposes  a  license  tax  upon  the  "  business  "  of  selling  liquors 
does  not  apply  to  bona  fide  social  clubs  which  keep  liquors  for  dis- 
tribution among  their  members,  in  the  absence  of  a  clear  intent  in 
such  ordinance  to  so  include  them.  The  court  said :  "  But  in  its 
transactions  with  its  members  in  the  carrying  on  of  the  club  house 
looking  simply  to  the  giving  to  them  such  privileges  in  the  property 
devoted  to  bona  fide  club  purposes  or  they  are  all,  in  common,  en- 

in  the  club,  or  whether  other  people  Ann.    520,    19    So.    468;    Mohrman's 

may  or  may  not  see  them  buy  the  liq-  Case,   105  Ga.  709,   32  S.   E.   143,  43 

uor,   or   for   what   other   purpose   the  L.  R.  A.  398,  70  Am.  St.  Rep.  74. 

place   is  being   operated,    if   the   fact  4.  Martin  v.  State,  59  Ala.  34, 

remains  that  intoxicating  liquors  are  Per  Stone  J. 

sold  on  the  Sabbath  day."     Per  Den-  5-  Manassas    Club    v.    Mobile,    121 

son,  J.,  citing  State  v.  Gelpi,  48  La.  Ala.  561,  25  So.  628. 


§   57G]  SALES    BY    SOCIAL    I  I.I   BS  ,;;;] 

titled  to  under  the  constitution  and  rules  of  the  club,  it  i-  qoI  en- 
gaged in  business  at  all  in  the  commercial  or  trade  sens< 
narily  understood.    Such  property  is  ben<  ficially  owned  in  common 
by  the  members  in  equal  shares,  and  is  devoted  to  their  common 
use.    So  far  as  such  property  can  be  actually  used  equally  by  all 
the  members,  as  in  the  case  of  reading  rooms,  sitting  roo 
no  special  charge  is  made  against  any  member  for  such  use.     All 
may  actually  use  such  things  in  common.     But  when  in  the  exer- 
cise of  the  common  privilege,  one  member  appropriates  to  hte 
elusive  use  food  or  drinks,  or  a  room  for  sleeping  purposes,  things 
that  cannot  be  actually  used  in  common  by  all  the  members,  he 
pays  therefor  simply  because  it  is  the  only  fair  and  equitable  way 
of  apportioning  the  expense  of  the  club  among  the  members.   .  .. 
We  shall  not  attempt  to  reconcile  the  cases.     A  full  examination 
but  demonstrates  that  there  is  ;i  conflict  in  the  views  of  the  courts 
upon  both  the  propositions  we  have  discussed,  viz. :  the  proper  con- 
•lion  of  such  an  ordinance  as  the  one  before  us,  and  assuming 
the  correctness  of  our  construction  the  question  whether  such  trans- 
actions as  we  have  detailed  bring  defendant  within  its  operation. 
We  believe  our  construction  of  the  ordinance  to  be  the  only  fair 
and  reasonable  construction  of  its  various  provisions;  and  upon 
the  proposition  that  a  bona  fide  social  club,  engaged   in  transac- 
tions of  the  kind  above  set  forth  is  not  engaged  in  the  busines 
selling  liquors  within  the   meaning  of  an  ordinance   simply   im- 
posing a  tax  upon  such  business,  we  are  satisfied   that  the  great 
weighl  of  authority  is  in  accord  with  our  conclusion.''  c 

§  576.  Colorado. 

In  Colorado  in  a  recent  case  it  is  decided  that  a  social  club  which 
dispenses  intoxicating  liquors  to  its  members,  at  a  price  iixed  by 
its  managers,   violates  a    local   ordinance   prohibiting  the   sale  or 

«•  Cuzner    v.    California    Club.    155       Cal.    303,    100    Pac.    868.       Per    An- 

gellotti,   J. 


032 


SALES    BY    SOCIAL    CLUBS. 


[§    577 


other  disposition  of  such  liquors,  even  though  such  liquors  are 
provided  merely  as  incidental  to  the  entertainment  of  the  members 
of  the  club,  the  transaction  being  a  sale.7  This  decision  has  been 
followed  in  a  later  case  in  the  same  state.8 

§  577.  District  of  Columbia. 

In  a  case  in  the  District  of  Columbia  it  was  decided  that  a  sale 
by  a  club  to  one  of  its  members  constituted  a  sale  within  the 
meaning  of  the  statute  and  that  the  club  was  a  "  barroom  "  as  de- 
fined therein  and  obligated  to  pay  a  license  fee,  it  being  declared 
that  it  was  immaterial  for  what  purpose  it  was  formed,  or  that 
the  sale  was  not  made  for  the  purpose  of  profit  and  was  but 
a  mere  incident  to  the  cultivation  of  social  relations  among 
members.9      Thus   it   is   said   in   one   case   in   this   connnection: 


7.  Manning  v.  Canon  City,  45  Colo. 
571.  See  City  of  Canon  City  v.  Man- 
ning, 43  Colo.  144,  95  Pac.  537,  17 
L.  R.  A.    (N.  S.)   272. 

In  the  case  referred  to  in  the  text 
the  authorities  are  reviewed  at  length 
and  it  was  said :  "  But  when  the 
members  of  the  club  clothe  the  board 
of  control  with  the  authority  to  dis- 
pose of  liquor  to  the  club,  they  re- 
linquish their  right  to  have  the  en- 
tire property  of  the  club  remain  in- 
tact for  joint  use,  occupancy  and  en- 
joyment of  all  the  members,  and  make 
such  board  their  agents  to  dispose  of 
the  liquor ;  and  in  our  opinion,  such 
disposal  by  the  board  is  a  sale  pure 
and  simple.  The  transaction  appears 
to  contain  all  the  elements  of  a  sale. 
Such  a  transaction  is  but  a  contract 
between  the  parties  to  give  and  to 
pass  rights  of  property  for  money 
which  the  buyer  pays,  or  promises  to 
pay,  to  the  seller  for  the  thing 
bought  and  sold.  And  it  would  re- 
quire *  *  *  a  refined  reasoning  to 
declare    that    the    club    is    doing    no 


more  than  distributing  a  common 
stock  of  liquor  among  its  members, 
while  the  robust  sense  of  the  com- 
munity, not  excluding  the  members 
themselves,  know  the  transaction  to 
be  a  sale."     Per  Steele,  C.  J. 

8.  Lloyd  v.  Canon  City,  (Colo.  S. 
C.  1909),   103  Pac.  288. 

*>•  Army  and  Navy  Club  v.  Dis- 
trict of  Columbia,  8  App.  D.  C.  544. 
In  this  case  it  appeared  that  the  stat- 
ute provided  in  substance  that  no 
person  should  sell  or  keep  for  sale  or 
traffic  in,  barter  or  exchange  for  goods 
in  the  District  of  Columbia  any  in- 
toxicating liquors  except  as  herein 
after  provided ;  sales  by  club  were  not 
among  those  expressly  excepted :  a 
barroom  was  defined  as  any  place 
where  intoxicating  liquors  were  sold 
to  be  drunk  on  the  premises  and  the 
possession  of  such  liquors  for  selling 
or  disposing  of  to  be  drunk  on  the 
premises  made  the  place  a  bar- 
room also  for  the  purpose  of  the 
act ;  a  barroom  license  was  re- 
quired  for   every   hotel,   tavern,   bar- 


§   578]  SALES    BY    SOCIAL    CL1  BS.  633 

••  Whether   furnishing  liquor   to   its   members   by   a  social   club 
in  the   manner  described   constitutes   a    sale    thereof  within    tin- 
meaning  of  that  word  as  used  generally  in  excise  and  prohibil 
laws,  is  a  question  which  has  undergone  much  discussion  in  the 
courts  of  the  country,  with  an  irreconcilable  conflicl  of  decisioi 
a  result.    The  most  if  not  all  of  these  have  been  brought  to  our  at- 
tention through  the  industry  of  counsel  and   it   seems   thai    the 
majority  of  them  sustain  the  side  of  the  negative.    These  decisi 
however,  are  not  binding  upon  us,  and  their  persuasive  force  is 
necessarily  weakened  by  the  fact  that  each  of  them  must  depend 
upon  the  construction  that  must  be  given  a  statute  which  open 
only  within  its  own  jurisdiction."  10 

§  578.  Georgia. 

The  fact  that  only  members  are  permitted  in  the  rooms  of  a 
social  club  will  not  take  such  an  organization  out  of  the  statute 
prohibiting  the  keeping  open  of  tippling  houses  on  the  Sabbath 
day.11  And  the  mere  fact  that  the  selling  and  drinking  of  intox- 
icating liquors  was  "  only  an  incident  and  not  the  main  obji 
of  the  incorporation  of  a  social  club,  will  make  the  place  where 
such  liquors  are  dispensed  and  drunk  none  the  less  a  tippling-house 
within  the  meaning  of  a  statute  making  penal  the  keeping  open 
of  such  houses  on  the  Sabbath  day.12  And  a  person  who  is  the 
manager  and  also  a  member  and  officer  of  a  social  club  and  who 
exercises  a  general  superintendence  over  the  affairs  of  the  club,  in- 
eluding  the  bar  from  which  the  intoxicating  drinks  are  furnished 
is  amenable  to  such  a  statute.13 

room  or  other  place  where  intoxicat-  trict  of  Columbia,  8  App.  D.  C.  f>44. 

ing   liquors  were  sold  by  retail:   and  Per  Mr.  Justice   Shepard. 

the   excise   board   was   authorized    in  "•  Mohrman  v.  State,  105  Ga,  709, 

its  discretion  to  issue  a  license  to  any  32  S.  E.  1  13,  43  L.  R.  A.  398,  7"  Am. 

duly  incorporated  club  and  to  granl  a  St.  Rep.  74. 

permit  to  such  a  club  to  sell   intoxi-  1-.  Mohrman  v  State.  10.">  Ga.  709, 

eating  liquors  between  auch  hours  as  32   S.   E.    143,   43   L.   R.  A.   398,   7" 

might  bo  designated  in  the  permit.  Am.  St.  Rep.  74. 
10.  Armv    and    Xavv    Club   v.    Dis- 


634 


SALES    BY    SOCIAL    CLUBS. 


[§   579 


§  579.  Illinois. 

In  a  recent  case  in  Illinois  it  is  decided  that  it  is  immaterial 
that  liquors  are  sold  by  a  corporate  club  to  its  members  for  a  price 
sufficient  only  to  pay  their  cost  and  the  cost  of  serving  them,  or 
whether  the  organization  and  management  of  the  club  is  in  good 
faith  or  a  mere  shift  or  device  to  evade  the  statute,  as  in  either 
case  there  is  a  sale  within  the  meaning  of  the  statute  requiring  a 
license.14  And  in  a  later  case  in  Illinois  it  is  held  that  a  social 
club  is  a  dramshop,  within  the  statute,  which  defines  a  dramshop  as 
a  place  where  spirituous,  vinous  or  malt  liquors  are  retailed  by 
less  quantity  than  one  gallon.15  An  early  case  in  Illinois  is  also 
frequently  referred  to  in  this  connection  as  supporting  the  un- 
qualified   proposition  that  such  a  transaction  is  a  sale  within  the 


13.  Mohrman  v.  State,  105  Ga.  709, 
32  S.  E.  143,  43  L.  R.  A.  398,  70  Am. 
St.  Rep.  74. 

14.  People  v.  Law  and  Order  Club, 
203  111.  127,  67  N.  E.  855,  62  L.  R.  A. 
884.  This  case  was  decided  in  view 
of  the  Dramshop  act  (Hind's  Stat. 
1901,  p.  750).  This  act  in  section  1 
defines  a  dramshop  to  be  "  a  place 
where  spirituous  or  vinous  or  malt 
liquors  are  retailed  by  less  quantity 
than  one  gallon,"  and  declares  these 
liquors  to  be  intoxicating  liquors 
within  the  meaning  of  the  act.  Sec- 
tion 2  provides  that  "  whoever,  not 
having  a  license  to  keep  a  dramshop, 
shall,  by  himself  or  another,  either 
as  principal,  clerk  or  servant,  directly 
or  indirectly,  sell  any  intoxicating 
liquor  in  any  less  quantity  than  one 
gallon  *  *  *  shall  be  fined."  Section 
7  provides  that  "  all  places  where  in- 
toxicating liquors  are  sold  in  viola- 
tion of  this  act,  shall  be  taken,  held 
and  declared  to  be  common  nuisance, 
and  all  rooms,  taverns,  eating  houses, 
bazaars,  *  *  *  or  otlier  places  of  pub- 
lic resort,  where  intoxicating  liquors 
are  sold  in  violation  of  this  act,  shall 


be  deemed  public  nuisances."  Sec- 
tion 13  provides  that  "the  giving 
away  of  intoxicating  liquors,  or  other 
shift  or  device  to  evade  the  provisions 
of  this  act,  shall  be  held  to  be  an  un- 
lawful selling."  Other  sections  pro- 
vide for  the  granting  of  licenses,  etc. 
15.  South  Shore  Club  v.  People, 
228  111.  75,  81  N.  E.  805,  12  L.  R.  A. 
(N.  S.)  519.  119  Am.  St.  Rep.  417. 
The  court  said:  "The  liquor  belonged 
to  the  corporation  as  a  legal  entity, 
and  no  member  owns  any  share  of 
the  liquor,  as  a  tenant  in  common  or 
otherwise.  An  association  organized 
merely  for  social,  literary,  scientific 
or  political  purposes,  although  not  in- 
corporated is  not  a  partnership.  A 
member  of  such  an  association  has  no 
individual  right  or  interest  in  the 
property  and  owns  no  proportionate 
share  of  it,  but  only  has  a  right  to 
the  joint  use  so  long  as  he  continues 
to  be  a  member.  Even  if  they  were 
tenants  in  common,  a  transfer  of  a 
specific  part  of  the  property  to  one 
for  a  stipulated  price  would  be  a 
sale."     Per   Cartwright,  J. 


SALES    BY    SOCIAL    CLUBS. 


635 


meaning  of  the  license  law.    This  case,  however,  the  facts  of  which 
we  give  in  the  note  goes  rather  to  1 1 1 « -  propositioD  thai  the  means 

used  constituted  a  mere  shift  or  device  to  evade  the  law  and  should 
be  classed  with  such  cases.10 


§  580.  Indiana. 

The  Indiana  case  often  referred  to  showed  plainly  a  device  to 
evade  the  law.  In  this  ease  it  appeared  that  a  club  was  formed  to 
meet  each  Sunday;  on  each  Saturday,  and  thai  day  only,  a  keg  of 
beer  was  purchased,  paid  for  and  placed  in  the  meeting  room  for 
the  use  of  the  members  on  Sunday;  the  members  paid  upon  ad- 
mission a  certain  sum  and  also  a  monthly  assessment  to  form  the 
basis  of  a  fund  to  pay  expenses  and  for  relief;  on  Sunday,  at  the 
meetings  of  the  club,  a  member  who  desired  a  glass  of  beer  could 
obtain  it  by  delivering  to  the  treasurer  five  cents  which  was  placed 
in  the  treasury  to  keep  up  the  funds,  to  pay  expenses  and  for  relief 
for  sickness  and  other  mishaps  to  members.  By  the  statute  of  the 
state  the  sale  of  intoxicating  liquors  on  Sunday  was  prohibited. 
The  court  reached  the  conclusion  that  the  delivery  of  the  glass  of 


16.  Rickart  v.  People,  7!)  111.  85, 
.  It  appeared  that 
in  this  ease  an  association  had  heen 
formed,  the  declared  purpose  of  which 
was  the  promotion  of  "temperance, 
friendship  and  good  feeling  in  the 
community  at  large."  Among  its  fir^t 
acts  the  company  rented  the  room 
defendant  had  formerly  occupied,  pur- 
chased of  him  the  remaining  stock  of 
liquors  he  had  on  hand  and  set  up 
and  opened  a  saloon,  without  having 
first  obtained  a  license  to  keep  a 
dramshop.  The  business  was  con- 
ducted under  the  management  of  the 
defendant  under  the  title  of  treasurer. 
who  received  all  money,  bought  all 
the  liquors  and  cigars  and  rendered 
ih>  account  to  the  members.  Tickets, 
costing  one  dollar,  and  numbered  from 
one  to  twenty  were  issued  to  persons 


on  their  becoming  members,  which 
tickets,  each  number  on  which  rep- 
resented five  cents,  were  presented 
at  th»  bar  when  a  purchase  was 
made.  The  court  said  in  its  opin 
ion:  "All  this  a  plainly  a  device, 
on  the  part  of  defendant  and  those 
who  desire  to  patronize  his  bar,  to 
avoid  the  provisions  of  the  law.  and 
to  enable  him  to  sell  intoxicating 
liquors  at  retail,  as  he  had  form- 
erly done,  without  first  obtaining 
a  license  to  keep  a  dramshop.  The 
purpose  and  ol>ject    is  so  transparent. 

that  the  Bubjecl  need  not  be  seriously 

discussed.  The  whole  thing  18  a  sub- 
tle artifice,  planned  with  a  view 
to  avoid  the  penalties  pronounced 
against  persons  violating  the  law." 
Per   Mr.   Chief  Justice   Scott. 


G36  SALES    BY   SOCIAL   CLUBS.  [§§  581,582 

beer  under  such  circumstances  coupled  with  the  payment  by  the 
member  of  five  cents  therefor  to  the  treasurer  constituted  a  sale 
within  the  meaning  of  the  statute.17 

§  581.  Iowa. 

In  a  case  in  Iowa  where  it  appeared  that  a  club  was  organized 
to  supply  its  members  with  liquor  to  be  used  as  a  beverage,  and  that 
the  liquors  were  sold  by  defendant  in  his  own  house  to  members 
who  purchased  and  presented  tickets,  the  defendant  purporting  to 
act  merely  as  an  agent  or  employee  of  the  club,  it  was  decided  that 
the  defendant  was  guilty  of  violating  the  prohibitory  law,  it  being 
declared  that  he  had  resorted  to  a  device,  craftily  planned  and 
boldly  executed  for  the  purpose  of  violating  the  law  and  that  he 
attempted  to  make  the  violation  respectable  by  getting  up  a  social 
organization  to  support  him.18 

§  582.  Kansas. 

In  Kansas  it  has  been  decided  that  where  an  incorporated  asso- 
ciation purchases  beer  outside  the  state  and  brings  it  into  the  state, 
and  then  sells  chips  to  its  members,  each  chip  representing  a  drink 
or  glass  of  beer,  and  then  furnishes  a  drink  or  glass  of  beer  for  each 
chip  returned  by  a  member,  and  the  beer  is  drank  as  a  beverage, 
and  neither  the  association  nor  any  one  of  its  members  has  any 
permit  to  sell  intoxicating  liquors,  the  member  of  the  association 
who  sells  these  chips,  the  member  who  delivers  the  beer  on  the 
return  of  the  chips  and  the  president  of  the  association  who  is 
present  at  the  time  and  knows  of  these  things  may  be  prosecuted, 
convicted  and  punished  for  selling  liquor  in  violation  of  the  law, 
it  being  also  immaterial  that  the  association  was  organized  prior 
to  the  passage  of  the  prohibitory  law,  as  such  disposal  violated 
likewise  the  license  law  in  force  prior  to  the  passage  of  such  act.19 

17.  Marmont  v.  State,  48  Ind.  21.       21    Pac.    204,   3   L.   K.   A.   f>87.     The 

18.  State  v.  Mercer,  32  Iowa  405.  court    declared:    "The    beer    was    not 
!»•  State  v.  Horacek,  41   Kan.  87,       distributed  to  or  among  the  members 


§§583,584]  SALES    Bl     SOCIAL   CLUBS.  637 

The  gratuitous  distribution,  however,  of  liquor,  obtained  in  a  law- 
ful manner  by  an  association  among  its  members,  or  the  giving 
away  of  it  to  a  person  is  declared  not  to  be  an  offense  under  the 
prohibitory  or  license  law.-"  In  this  state,  by  an  ac1  passed  in 
L881,  the  keeping  of  :i  place  by  a  club  for  the  sale  or  distribution 
of  liquors  amongst  its  members,  was  forbidden  and  this  act  was  not 
repealed  by  the  act  of  1901.21 

§  583.  Kentucky. 

In  Kentucky  it  has  been  decided  that  where  a  social  club  pur- 
chases liquor  in  large  quantities  and  furnishes  it  to  its  men;1 
no  member  being  permitted  to  drink  or  consume  any  of  it  without 
paying  directly  out  of  his  individual  means  to  the  club  the  price 
per  drink  or  bottle  charged  therefor,  there  is  a  selling  by  retail 
within  the  meaning  of  a  city  ordinance  requiring  every  clubdiouse 
and  club-room  wherein  liquors  are  sold  by  retail  to  pay  a  license.22 

§  584.  Louisiana. 

In  Louisiana  it  has  been  decided  where  a  club  disposes  of  liquor 
to  its  members,  each  member  paying  for  what  he  receive-,  that 
even  though  it  may  not  be  a  sale,  it  is  included  within  the  terms  of 
the  statute  requiring  licenses  for  places  where  "sales,  gifts  or 
disposition"  of  liquor  takes  place.23     And  it  has  been  decided 

in  equal  shares,  nor  was  it  distributed  1909),  101   Pac.  404  construing  Laws 

to   them   at   all   except    as  they   pur-  1881,  p.  242,   g   10,  Gen.   St.   1901,   § 

chased    it.      Under    their    rules    some  2466,  and  Laws  1901,  p.  416;  C.  232, 

of  the  members  might  gel  all  the  beer  §   1.  Gen.  St.   1901,  §  2493. 
ami  the  others  none.     Those  purchas-  '-'-•  Kentucky     Club     v.     City     of 

ing  the   chips   would   gel    beer  while  Louisville,    92     Ky.    309,    17    s.    \v. 

the  others  would  not   get   any.     The  743.      In    this    case    it    appeared    the 

sale  of  the  chips  was  really  a  sale  of  ordinance  was  passed  in  the  exercise 

the  beer,  as  the  chips  represented  the  of  power  expressly  conferred  to  license 

beer  and  nothing  else."     Per  Valen-  club-rooms  or  any  other  establishment 

tine,  J.  wherein  liquors  were  Bold. 

*>•  State   v.    Horacek,   41    Kan.   87,  -•"<•  State    v.     Boston     &     Pickwick 

21    Pac.  204,  3  L.  R.  A.  687.  Club,   15  La.  Ann.  5S5,  12  So. 

21.  Ex      part,       Manning       (Kan.  20  L.  R.  A.  185. 


g38  SALES    BY    SOCIAL    CLUBS.  [§§    585,586 

that  a  sale  of  intoxicants  by  a  club  to  its  members,  even  though  not 
made  for  any  profit,  is  such  a  sale  as  brings  the  bar  within  the 
operation  of  a  statute  requiring  that  licensed  stores,  shops  and 
saloons  shall  close  on  Sunday.24 

§  585.  Maine. 

The  disposal  of  liquor  by  a  club  among  its  members  is  con- 
sidered in  a  recent  case  in  Maine,  which  was  decided  under  a 
statute  as  to  nuisances.  The  statute  provided  that :  "  All  places 
used  ...  for  the  illegal  sale  or  keeping  of  intoxicating  liquors, 
and  all  houses,  shops  or  places  where  intoxicating  liquors  are  sold 
for  tippling  purposes,  and  all  places  of  resort  where  intoxicating 
liquors  are  kept,  sold,  given  away,  drunk  or  dispensed  in  any 
manner  not  provided  for  by  law,  are  common  nuisances."  The 
prosecution  was  against  a  member  of  a  club  for  disposing  of  liquor 
to  the  members.  It  appeared  that  the  club  was  regularly  organ- 
ized, having  a  constitution  and  by-laws  and  from  the  dues  assessed 
to  the  members,  sick  and  death  benefits  were  paid.  The  premises 
consisted  of  a  lodge  room,  billiard  room  and  bar  room.  A  member 
of  the  society  acted  as  janitor  and  keeper  of  the  bar  room  each  in 
turn  for  two  weeks  and  without  compensation.  The  conclusion 
was  reached  in  this  case  that  under  the  statute  any  place  of  resort 
where  liquors  are  illegally  kept  is  a  nuisance,  that  any  place  of 
resort  where  liquors  are  given  away  is  a  nuisance  and  that  it  made 
no  difference  whether  the  men  were  joined  as  a  club  and  chipped 
in  in  advance  and  bought  the  liquor,  if  when  it  came  there  it  was 
drunk  on  the  premises  resorted  to.25 

§  586.  Maryland. 

In  an  early  case  in  Maryland  in  which  this  question  arose,  it  was 
declared  that  the  license  laws  which  forbid  the  sale  or  barter  of 

24.  State  v.  Gelpi,  48  La.  Ann.  520,  ^r,.  state  v.  Kapicsky    (Me.  1909), 

19  So.  468.  73  Atl.  830. 


<    586]  SALES    BY    SOCIAL    CLUBS.  »,:;«., 

liquors  without  a  license  had  never  been  construed  as  applicable 
to  social  clubs  where  Liquors  were  procured  by  the  club  for  the  use 
of  the  members  who  obtained  the  same  from  the  club  through 
the  steward  by  calling  for  them  and  paying  a  price  fixed  by  the 

regulations  of  the  corporation  which  (nice  was  nol  for  the  pur] 
of  making  any  profit,  but  merely  to  cover  outlay  of  purchase  and 
expense  of  keeping  and  serving.  And  the  court  decided  thai  such 
club  did  not  require  a  license  as  the  transaction  was  not  a  -;i!<- 
within  the  meaning  of  the  license  laws.26  In  a  later  case  in  this 
state  under  a  statute  providing  that  it  shall  not  be  lawful  for  "  any 
person  or  persons,  house,  corporation,  company  or  association  to 
sell,  directly  or  indirectly,  at  any  place  intoxicating  liquor" 
and  further  providing  "  that  no  person  or  persons,  company,  cor- 
poration or  association  shall  deposit  or  have  in  his,  her,  their  or 
its  possession  "  any  such  liquors  with  intent  to  sell  or  give  away 
the  same,  it  was  decided  that  a  club  in  keeping  such  liquor  at 
its  rooms  with  the  intent  of  disposing  of  the  same  to  its  members 
either  by  sale  or  gift  was  acting  in  violation  of  the  law.27  And 
subsequently  in  this  state  in  a  case  which  referred  to  the  case  "t" 
Chesapeake  Club  v.  State,28  and  declared  that  as  it  resulted  in  an 
affirmance  by  a  divided  court  of  the  ruling  of  the  lower  court,  it 
might  not  furnish  a  binding  precedent  or  authority  for  the  decision 
to  be  made  in  the  case  before  the  court,  vet  that  after  a  careful 

26.  Seim   v.   State,    55   Mich.   506,  forbid  the  sale  or  barter  of  spiritu- 

39   Am.   Rep.   496.      In   this   case   the  ous   or   fermented   liquors    without    a 

prosecution    was    against    a    tint)    for  license. 

selling   beer   on    Sunday    to   its    mem-  -'•  Chesapeake    Club    v.    Stale    63 

bers  in  violation  of  an  act  providing  Md.  446,  affirming  by  a  divided  court 

that   "no   person   in   tbis  state  shall  the  ruling  of  the  court  below  and  dis- 

sell,   dispose   of,   or    barter,    or    if    a  tinguishing    Seim    v.    State.    .">:.    Md. 

dealer  in  any  one  or  more  of  the  ar-  566,   •'!'■>   Am.   lop.    196,  and   declaring 

tides  of  merchandise  in  this  section  that    the   statute  being  construed    in 

mentioned,    shall    give    away    on    the  the   liter   ease   was   evidently    framed 

Sabbath    Day.   commonly   called    Sun-  in   such  terms  as  to  avoid   the  effect 

day  *  *  *  spirituous  or  fermented  liq-  of  the  earlier  decision. 

uors.  cordials,  lager  beer,  wine,  cider  28.  t;::  Md.  446. 
or  any  other  goods."    The  license  law-, 


04  0 


SALES    BY    SOCIAL    CLUBS. 


[§  587 


examination  and  comparison  of  all  the  decisions  upon  the  subject 
kt  we  are  decidedly  of  opinion  that  the  furnishing  of  liquors  by  the 
club  to  its  members  for  a  price  fixed  by  regulation,  and  paid  by 
the  member  upon  receipt  of  the  liquor,  constitutes  a  sale,  and  is, 
therefore,  in  violation  of  the  statute,"  and  the  fact  that  the  sales 
were  made  without  actual  profit  to  the  club  was  declared  to  be 
immaterial.29  And  where  by  statute  social  clubs  are  brought 
within  the  provisions  of  the  charter  of  a  city  in  respect  to  the 
granting  of  licenses  they  are  subject  to  a  charter  provision  that 
no  license  to  sell  intoxicating  liquor  on  Sunday  shall  be  granted 
to  any  person  and  this  without  regard  to  the  fact  whether  or  not 
such  disposal  of  liquors  to  the  members  is  not  for  profit.30 

§  587.  Massachusetts. 

In  a  case  in  Massachusetts  the  court  said :  "  A  place  would  be 


ii!».  State  v.  Easton  Social  Club,  73 
Md.  97,  20  Atl.  783,  10  L.  R.  A.  64. 
The  court  said :  "  The  parties  are 
competent  to  contract  one  with  the 
other. — there  being  no  principle  to 
forbid  a  member  of  a  corporation 
from  contracting  with  or  becoming  a 
purchaser  of  property  from  the  cor- 
porate body  as  a  legal  entity.  And 
that  being  so,  the  course  of  dealing 
as  between  the  corporation,  and  its 
individual  members,  as  stated  in  the 
answers,  present  all  the  elements  of 
an  executed  contract.  The  corpora- 
tion being  the  owner  of  the  liquor, 
through  its  appointed  agent,  delivers 
it  to  the  member  of  the  corporation 
on  his  request  and  receives  a  fixed 
compensation  in  money  therefor.  The 
property  in  the  liquor  passes  to  and 
becomes  vested  in  the  individual  mem- 
ber, and  the  money  paid  is  received 
for  and  becomes  the  property  of  the 
corporation.  Nothing  more  is  or  can 
be  required  to  constitute  a  completed 
sale.  And  such  being  the  case  why 
should  this  court   be  astute  and   in- 


dulge questionable  refinements  in  or- 
der to  relieve  these  corporations  of 
the  just  consequences  of  their  acts? 
By  holding  that  the  supply  of  liquor 
by  the  club  to  its  members,  in  the 
manner  admitted  by  the  answers,  does 
not  constitute  a  sale  within  the  mean- 
ing of  the  Local  Option  Law  of  Tal- 
bot County,  we  should  certainly  af- 
ford impunity  to  gross  violations  of 
the  spirit  and  intent  of  the  statute 
and  thereby  open  the  door  to  all  the 
evils  intended  to  be  suppressed  by 
it;  and  that  done  by  simply  allowing 
a  combination  of  individuals  to  do 
what  individuals  without  combination 
could  not  do  without  incurring  the 
penalties  of  the  law."  The  court  held 
that  the  word  "  person  "  as  used  in 
the  statute  included  artificial  as  well 
as  natural  persons.  The  case  of  Seim 
v.  State,  55  Md.  566,  39  Am.  Rep.  496 
was  also  again  distinguished  from  the 
one  before  the  court. 

•to.  state    v.    Maryland    Club,    105 
Md.  585,  66  Atl.  667. 


g   587]  SALES    i:v    social   CLUBS.  ,;11 

equally  a  nuisance  under  the  statute  if  used  by  a  club  either  to 
sell  intoxicating  liquors  to  its  members,  or  to  distribute  anion-. 
members  intoxicating  liquors  owned  by  them  in  common,  or  I  i 
procure  for  and  dispense  to  its  members  intoxicating  Liquor  which 
was  bough*  for  and  belonged  to  them  individually. "'  And  it  v> 
i  that  there  could  be  no  room  for  any  other  conclusion  as 
statute  provided  thai  "  All  buildings  or  places  used  by  club-  for  the 
purpose  of  selling,  distributing,  or  dispensing  intoxicating  liqi 
to  their  members  or  others  shall  be  deemed  common  nuisances."  ::1 
In  an  earlier  case  in  Massachusetts  where  the  steward  was 
prosecuted  for  selling  liquors  without  a  license,  the  sale  being  to  a 
member  of  the  club,  the  judge  instructed  the  jury  on  the  request 
of  the  defendant  as  follows:  "  1.  If  this  was  a  bona  fide  club  and 
liquors  owned  in  common  by  the  members,  and  the  members  on 
receiving  liquor  gave  in  return  money  instead  of  checks,  it  would 
not  constitute  a  sale  within  the  meaning  of  the  statute.  2.  If  two 
or  more  persons  unite  in  buying  intoxicating  liquor,  and  then  dis- 
tribute it  among  themselves,  they  do  not  violate  the  statute,  and 
the  intent  with  which  they  do  this  is  immaterial.  If  they  intend 
in  this  manner  to  obtain  intoxicating  liquor  to  drink  without 
thereby  subjecting  any  person  to  the  penalties  of  the  statute  t hey 
still  act  with  impunity."  The  judge  however  added  this  qualifica- 
tion to  the  second  instruction:  "  It  is  not  a  violation  of  the  law  if 
they  unite  in  good  faith  in  dividing  it.  If  two  persons  buy  a 
gallon  of  liquor  and  divide  it  among  themselves,  they  act  with  im- 
punity;  but  if  this  is  a  mere  device  to  cheat  the  government  out 
of  its  license  fee,  and  prevent  the  due  execution  of  law,  it  is  not  a 
protection,  and  the  defendant  does  not  act  with  impunity."  The 
defendant,  who  had  objected  to  this  further  instruction,  was  found 
guilty  and  appealed.  It  was,  however,  decided  that  he  had  no 
ground  of  exception.  The  evidence  in  this  case  tended  to  show 
that  each  person  on  admission  to  the  club  paid  the  treasurer  one 

31.  Commonwealth    v.    Baker,    l.r>2  Mass.   337,  25  X.  E.  718. 


642  SALES    BY    SOCIAL    CLUBS.  [§   587 

dollar  and  received  a  card  certifying  his  membership;  that  the 
money  so  obtained  was  used  in  purchasing  liquors  in  the  name  of 
the  club ;  that  the  members  were  furnished  checks  for  five  and  ten 
cents  each  to  any  amount  upon  paying  the  treasurer  or  steward  the 
price  for  the  same;  that  none  but  members  were  admitted  to  the 
club  or  could  obtain  drinks  there  and  that  at  no  time  was  liquor 
paid  for  when  served  other  than  by  checks.  The  prosecution  con- 
tended that  in  the  case  in  question  money  was  given  in  payment 
for  the  drinks,  and  it  was  also  the  contention  of  the  state  that 
the  club  was  organized  to  defraud  the  state  of  the  license  fee,  that 
the  books  and  records  were  not  genuine  and  were  not  the  evidence 
of  a  genuine  organization  and  were  founded  in  fraud  and  deceit 
and  were  gotten  up  to  cover  illegal  acts  and  transactions  by  defend- 
ant. And  the  court  on  appeal  said  that  an  important,  if  not  the 
principal  question  of  the  case,  was  whether  this  was  a  real  and 
genuine  arrangement  for  the  division  of  liquor  among  the  owners  of 
it  or  was  a  mere  pretence  and  device  to  cover  up  unlicensed  sales.32 
In  an  earlier  case  in  Massachusetts,  however,  where  the  conditions 
as  to  membership  and  obtaining  of  liquor  were  practically  the 
same  as  in  Commonwealth  v.  Ewig,  33  the  court  on  appeal  declared 
that  the  ruling  and  instructions  seemed  to  assume  that  it  was  a 
bona  fide  club,  that  the  liquors  were  owned  in  common  by  the  mem- 
bers, that  they  were  furnished  only  to  members ;  that  they  were 
kept  by  defendant  as  one  of  the  members  and  as  steward,  and  that 
the  court  on  appeal  could  not  assume  that  any  person  could  join 
the  association  at  his  pleasure,  and  it  was  decided  that  a  disposal  by 
the  defendant  to  a  member  of  liquor  was  not  a  sale  and  that  it 
was  not  competent  for  the  jury  to  find  him  guilty  of  keeping  in- 
toxicating liquors  with  intent  to  sell  the  same.34  Again  in  an 
earlier  case  in  this  state  it  was  declared  that  it  was  a  question  of 


32.  Commonwealth    v.     Ewig,     145  34.  Commonwealth     v.      Pomphret, 
Mass.  119,  13  N.  E.  305.                              137  Mass.  564,  50  Am.  Rep.  340. 

33.  145  Mass.  119,  13  N.  E.  365. 


§§  588,589]  BALES    ETC    SOCIAL   CLUBS.  043 

fact  for  the  jury  whether  an  arrangement  for  the  formation  of  a 
club,  the  purchase  of  liquors  with  their  joint  funds  ami  their  dis- 
tribution among  the  members  by  the  agency  of  the  defendant,  a 
member  of  the  club,  was  a  mere  evasion  of  the  law  or  not  and  that 
the  trial  court  was  not  warranted  in  assuming  that  it  was  such  an 
evasion  or  that  a  distribution  of  liquors  would  be  a  sale.35 

§  588.  Michigan. 

In  Michigan  it  has  been  held  that  the  object  of  a  law  requiring 
that  licenses  should  be  obtained  by  retail  dealers  of  liquors,  defining 
such  dealers  as  all  who  sold  by  the  drink  and  in  quantities  of  three 
gallons  or  less  and  further  providing  that  all  saloons,  restaurants, 
bars  in  taverns  or  elsewhere,  and  all  other  places  except  drug  stores 
where  such  liquors  were  sold  either  at  wholesale  or  retail  shoidd 
be  closed  on  the  first  day  of  the  week,  was  to  tax  the  business  of 
liquor  selling  wherever  found,  or  by  whom  carried  on  and  reached 
a  club-house  or  a  private  house  as  well  as  a  saloon  or  tavern  and 
included  all  persons  engaged  in  such  business.36 

§  589.  Minnesota. 

In  a  recent  case  in  Minnesota,  which  the  court  said  they  believed 
was  the  first  case  in  the  history  of  this  state  in  which  the  question 
had  arisen,  the  subject  is  considered  at  length  and  a  large  number 
of  the  cases  reviewed  and  the  conclusion  is  reached  that  a  social 
organization  or  club  chartered  under  the  laws  of  the  state  is  a 
"  person  "  within  the  license  laws  of  the  state  and  that  the  distribu- 
tion of  liquors  in  less  quantities  than  five  gallons  by  such  a  club  to 
its  members  constitutes  a  sale  within  the  meaning  of  such  law 
and  is  prohibited  unless  protected  by  license.37  After  reviewing 
the  cases  the  court  said:  "  It  will  thus  be  seen  that  the  cases  relied 


3B.  Commonwealth    t.    Smith,    102       41  X.  W.  908,  2  L.  R.  A.  494. 
Mass.  144.  •*7-  State  v.  Minnesota  Club  (Minn. 

36.  People  t.  Soule,  74  Mich.  250,       1909).  119  N.  W.  494. 


644  SALES    BY    SOCIAL    CLUBS.  .[§    590 

upon  by  respondent  either  follow  the  English  rule  that  the  distribu- 
tion of  intoxicating  liquors  to  club  members  does  not  constitute  a 
sale,  for  the  reason  that  the  members  are  the  joint  owners  of  the 
property  and  are  merely  distributing  to  themselves  property  which 
they  already  own,  or  are  based  upon  peculiar  statutes  which  fairly 
indicate  that  the  legislature  only  intended  to  make  the  license  law 
apply  to  the  retail  of  intoxicating  liquors,  where  it  was  carried  on 
as  a  business  for  profit  as  a  means  of  livelihood.  Whatever  may  be 
the  proper  application  of  the  statute  to  voluntary  associations 
where  property  is  held  in  common,  the  English  rule  has  no  ap- 
plication where  the  organization  is  a  legally  constituted  corpora- 
tion. The  statute  makes  no  express  exception  in  favor  of  such  cor- 
porations, and,  considering  the  purpose  sought  to  be  accomplished, 
in  restraining  the  distribution  of  intoxicating  liquors,  as  expressed 
in  the  plain  terms  of  our  statute,  we  fail  to  discover  any  implied 
exceptions."  38 

§  590.  Mississippi. 

In  Mississippi  it  has  been  declared  as  follows :  "  We  unhesitat- 
ingly adopt  as  sound  the  views  of  those  courts  which  have  held 
that  such  a  device  as  was  resorted  to  by  appellant  in  disposing  of 
vinous  and  spirituous  liquor  was  a  violation  of  the  law  against 
unlicensed  retailing.  ...  It  must  be  so  unless  an  association  of 
persons  may  lawfully  do  what  none  of  the  individuals  could,  and 
it  would  be  a  reproach  to  the  law  if  this  were  so."  39  In  a  later 
case  where  evidence  showed  that  the  defendant  operated  under  the 
name  of  a  club,  that  tickets  were  issued  which  represented  the 
amount  of  beer  purchased,  that  such  tickets  were  paid  for  in  ad- 
vance and  punched  as  the  beer  was  called  for  and  consumed  by  the 
holder  of  the  ticket,  and  that  a  person  only  remained  a  member  of 


38.  Per  Lewis,  J.  not  for  profit,  to  members  of  a  social 

39.  Nogales  Club  v.  State,  69  Miss.      club. 
218,  10  So.  574,  so  holding  as  to  sales, 


§§   591,592]  SALES    BY    SOCIAL   CLUBS.  545 

the  club  so  long  as  his  ticket  lasted,  it  was  held  that  the  evidence 
showed  that  the  defendant  was  openly  and  habitually  engaged  in 
an  attempt  to  evade  the  law  and  that  such  Bales  were  illegal.40 

§  591.  Missouri. 

Where  a  club  is  used  as  a  mere  scheme  to  sell  liquor  in  de- 
fiance of  the  law,  the  prime  object  being  a  mere  evasion  of  the  law, 
it  is  within  the  meaning  of  the  liquor  laws.41  But  the  word 
"person  "  as  used  in  a  dramshop  act  has  been  held  not  to  include 
an  incorporated  club,  organized  and  conducted  in  good  faith  as  a 
social  club  and  it  is  not  required  to  take  out  a  license  as  is  required 
by  such  act.42  "  Applying  the  test  that  commends  itself  to  our  best 
judgment,  in  view  of  the  conflict  in  the  decisions,  we  think  that 
where  a  social  club  as  in  this  case  is  clearly  a  bona  fide  organiza- 
tion, with  a  limited  membership,  and  admission  into  which  cannot 
be  obtained  by  any  person  at  his  pleasure,  and  its  property  is  ac- 
tually owned  in  common  by  its  members,  a  distribution  of  wine  or 
liquors  belonging  to  such  club,  among  its  several  members,  is  no1 
a  sale  of  liquor  by  retail  or  in  original  packages  within  the  mean- 
ing and  purview  of  our  dramshop  act,  although  technically  the  act 
•Iocs  amount  to  a  sale  for  some  purposes."  43  The  bona  fides  of  a 
club  is  in  each  case  a  question  for  the  court  or  the  jury  under 
proper  instructions  of  the  court.44 

§  592.  Montana. 

In  this  state  it  has  been  decided  that  where  n  club  is  organized 
and  conducted  as  a  bona  fide  social  club,  and  liquor  is  distributed 


40.  Harper  v.  state.  85  Miss.  338,  »:t.  State    v.    St.    Louis    Club,    125 
37  So.  956.  Mo.   308,  28   S.   W.  604,  26   !..   I:.   A. 

41.  State  v.  st.  Louis  Club,  125  Mo.  573.     Per  Garrett,  P.  J. 

308,  28  S.  W.  604,  26  L.  R.  A.  573.  14.  State    v.    St.    Louis    Club,    125 

42.  State  v.  St.  Louis  Club,  125  Mo.  Mo.  308,  28  S.  W.  604,  26  L.  K.  A. 
308,  28  S.  W.  604,  26  L.  R.  A.  573.  573. 


646  SALES   BY   SOCIAL  CLUBS.       [§§  593,594,505 

only  to  the  members  of  the  club  there  is  not  a  sale  within  the  mean- 
ing of  the  license  laws  and  the  club  is  not  liable  for  the  tax.45 

§  593.  Nebraska. 

If  the  club  is  organized  and  conducted  as  a  mere  cover  for  illicit 
traffic  in  intoxicating  liquors  then  there  is  a  violation  of  the  law 
as  to  licenses.46 

§  594.  New  Jersey. 

In  New  Jersey  it  has  also  been  held  that  a  club  which  disposes 
of  liquors  to  its  members  though  not  done  for  the  purpose  of  evad- 
ing the  law  or  of  making  a  profit  out  of  the  members  comes  within 
the  operation  of  an  ordinance  imposing  a  penalty  for  selling  liquor 
at  retail  without  a  license.  The  court  declared  in  this  case  that, 
"  it  is  wholly  immaterial  and  not  a  legitimate  subject  of  inquiry 
whether  an  intention  to  violate  or  evade  the  law  was  present  or 
not.  Intent  constitutes  no  part  of  the  offense ;  the  simple  question 
is  presented,  whether  the  act  expressly  inhibited  has  been  done.  If 
so,  the  presumption  of  wrongful  intent  is  absolute  and  cannot  be 
controverted.47 

§  595.  New  York. 

Where  a  person  acting  as  agent  or  steward  of  an  unincorporated 
asociation  formed  for  social  purposes,  upon  the  request  of  a  mem- 
ber thereof,  delivers  to  a  person  not  a  member  liquors  belonging 
to  the  association  and  receives  pay  therefor,  although  from  the 
member  the  transaction  constitutes  a  sale  within  the  meaning  of 
the  excise  law  and  it  appearing  that  neither  the  steward  nor  the 
association  had  obtained  a  license  therefor,  such  a  sale  is  a  viola- 
tion of  its  provisions.48     This  case,49  was  distinguished  in  a  later 

46.  Burden  v.  Montuna  Chib,  10  48.  People  v.  Andrews,  115  N.  Y. 
Mont.  330,  25  Pac.  1042,  24  Am.  St.  427,  22  N.  E.  358,  0  L.  II.  A.  128,  re- 
Rep.  27,  11  L.  R.  A.  503.                             versing  People  v.  Andrews,   50   Hun. 

»<;.  Sothman  v.  State,  66  Neb.  302,  591,  3  N.  Y.  Supp.  508. 

92  N.  W.  303.  49.  People  v.   Andrews,   115  N.   Y. 

47.  Newark   v.    Essex   Club*  53   N.  427,  22  N.  E.  358,  6  L.  R.  A.  128. 
J.  L.  99,  20  Atl.  769. 


§   595]  SALES    BY    SOCIAL  CLUBS.  CI7 

case  in  this  state  in  which  the  court  declared  as  follows:  "  We  are 
aware  that  it  has  been  generally  understood  that  this  court  in  that 
case  intended  to  hold  chilis  liable  under  the  Btatute,  and  that  the 
general  terms  in  several  instances  have  subsequently  so  held,  i 
ing  their  decisions  upon  that  case.50  But  such  was  not  the  inten- 
tion of  this  court  and  to  that  extent  its  determination  has  been  mis- 
understood. The  question  here  presented  must  therefore,  be  r< 
garded  as  undecided  and  still  open  for  consideration."51  In  this 
state  it  has  been  decided  that  the  furnishing  of  liquors  to  its  mem- 
bers, upon  their  written  orders,  at  a  price  designed  to  cover  the 
purchase  price  and  disbursements  of  serving,  by  a  bona  fide  social 
club,  regularly  organized  under  the  statute  for  a  legitimate  pur- 
pose, to  which  the  furnishing  of  liquors  to  its  members  is  merely  in- 
cidental, and  having  a  limited  and  selected  membership,  does  not 
constitute  a  sale  within  the  meaning  of  a  statute  making  it  a  mis- 
demeanor to  sell  without  a  license.52  And  in  another  case  in  Xew 
York  it  is  declared  that  "  where  it  appears  plainly  that  the  cor- 
poration exists  solely  for  the  purpose  of  carrying  on  an  establish- 
ment for  selling  intoxicating  liquors  to  anyone  who  chooses  to  buy 
them,  the  court  is  not  bound  to  stop  with  the  fact  of  its  organiza- 
tion, but  may  examine  into  the  whole  case,  and  if  it  concludes  that 
it  is  organized  for  the  purpose  of  evading  the  statute,  it  is  at  liberty 
to  so  say  and  revoke  the  certificate,  as  it  might  revoke  the  certificate 
of  any  other  person  who  sold  liquors  illegally."  53  But  where  it 
appeared  that  a  ball  which  was  given  by  a  club  was  not  confined  to 

50.  Citing  People  v.  Sinell,  34  N.  510.  See  also  People  v.  Hamilton, 
Y.  St.  R.  898;  People  v.  Bradley,  33  17  Misc.  R.  (N.  Y.)  11,  39  N.  Y. 
N.  Y.  St.  R.  5(52;  People  v.  Luhrs,  7       Supp.  531. 

Misc.  R.  503,  28  N.  Y.  S.  498.  S3.  Matter  of  Lyman,  2s  App.  Div. 

51.  People  v.  Adelphi  Club  of  City  (N.  Y.)  127.  134,  50  X.  V.  Supp.  977. 
of  Albany,  149  N.  Y.  5,  43  N.  E.  410,  Per  Runisey.  J.  See  Cullman  v.  Trol- 
52  Am.  St.  Rep.  700,  31  L.  R.  A.  510.  ley  Club.  65  App.  Div.  (N.  Y.)  202, 
Per  Height,  J.  72  N.   V.  Supp.  629;   Lyman   v.  Gra- 

52.  People  v.  Adelphi  Club  of  City  mercy  Club.  39  App.  Div.  (X.  Y.) 
of  Albany,  149  N.  Y.  5,  13  N.  E.  410,  661,  57  X.  Y.  Supp.  376. 

52   Am.   St.   Rep.    700,   31    L.    R.    A. 


(34S  SALES    BY    SOCIAL    CLUBS.  [§   59ft 

its  members  but  that  the  public  generally  were  admitted  and  that 
liquors  were  sold  indiscriminately  to  any  person  admitted  and 
desiring  them  it  was  held  that  the  rule  that  the  police  might  be  en- 
joined from  entering  a  private  club  did  not  apply  and  that  an  in- 
junction restraining  them  from  so  doing  was  properly  not  con- 
tinued/'4 

§  596.  North  Carolina. 

In  the  first  case  in  which  this  question  arose  it  appeared  that  a 
number  of  persons  had  organized  a  club  for  social  and  literary  pur- 
poses and  became  duly  incorporated  under  the  general  law.  Inci- 
dental to  the  main  purposes  of  the  organization,  the  members,  but 
no  other  persons,  were  permitted  to  purchase  from  the  defendant, 
its  steward,  meals,  cigars  and  liquors,  which  were  furnished  by  the 
club  at  a  price  fixed  by  its  officers,  sufficient  to  cover  the  cost  but  not 
for  the  purpose  of  profit.  Subsequently  an  election  was  held  in  the 
township  in  which  the  club  was  located,  under  the  local  option 
law,  at  which  a  majority  of  the  votes  were  cast  for  prohibition. 
The  court  held  that  the  furnishing  of  liquors  to  the  members  of 
the  club  under  these  circumstances  was  a  sale  which  was  in  viola- 
tion of  the  local  option  act.  The  section  under  which  the  indict- 
ment was  framed  provided  that  when  the  result  of  the  popular 
vote  favored  prohibition  "then  and  in  that  case  it  shall  not  be 
lawful  for  the  Board  of  Commissioners  to  license  the  sale  of  spiri- 
tuous liquors,  or  for  a  person' to  sell  any  spirituous  liquors  within 
such  county,  town  or  township  "  until  another  and  reversing  elec- 
tion shall  be  held,  "  and  if  any  person  shall  sell  any  spirituous 
liquor  within  such  territory  as  specified"  such  person  offending 
shall  be  guilty  of  a  misdemeanor.55  And  the  conclusion  reached 
in  this  case  was  followed  in  a  later  decision  in  the  same  state  in 
which  the  same  state  of  facts  existed.56 

•"4.  Cercle  Francais  de  L'Harmonie      59   Am.   Dec.   287.     The   court   said: 

v.  French,  44  Hun.   (X.  Y. )   123.  "There  can  be  no  question  that  in  a 

55.  State  v.  Lockyear,  95  X.  C.  G33,      strict  legal  sense,  the  transaction  de- 


597,598]  SALES    i;v    S0(  iai.   CL1  BS.  649 

§  597.  Oregon. 

In  Oregon  also  a  transaction  of  this  kind  by  which  liquor  is 
disposed  of  by  a  club  to  its  members  is  held  to  be  a  sale.  The 
court  said:  "The  question  whether  or  aol  the  furnishing  of  in- 
toxicating or  fermented  liquor,  by  a  club  to  its  members,  in  the 
manner  above  stated  constitutes  a  sale  in  violation  of  laws  pro- 
hibiting sales,  or  whether  or  not  it  constitutes  a  sale,  within  the 
meaning  of  a  law  requiring  a  license  before  one  can  engage  in 
retailing  such  liquor  has  been  the  subject  of  various  and  conflicting 
decisions  by  a  number  of  the  appellate  courts  of  the  country. 
While  the  cases  cannot  be  reconciled,  the  cases  as  well  as  the  weight 
of  authority  is  undoubtedly  in  favor  of  the  rule  that  the  distribu- 
tion and  consumption  of  liquors,  in  a  club,  by  its  members,  in  the 
manner  above  stated,  is  a  sale  and  a  violation  of  the  laws  stated.57 

§  598.  Pennsylvania. 

If  an  incorporated  club  is  organized  and  conducted  in  good  faith 
with  a  limited  and  selected  membership  really  owning  its  property 


scribed  in  the  verdict  is  a  sale  of 
spirituous  liquors.  All  the  elements 
of  an  executed  contract  are  present. 
The  corporate  body,  a  legal  entity, 
and  the  owner  of  the  liquor  through 
its  servant,  the  defendant,  delivers  it 
to  the  purchaser  at  his  call,  and  re- 
ceives a  fixed  compensation  in  money 
therefor.  The  property  in  1  he  goods 
passes  and  vests  in  the  purchaser,  and 
the  money  paid  is  received  for  and 
becomes  the  property  of  the  club. 
Can  there  be  any  doubt  that  a  corpo- 
ration may  make  contracts  and  deal 
with  a  corporator,  precisely  as  with 
a  stranger,  and  valid  obligations  capa- 
ble of  enforcement,  be  thus  formed 
between  the  parties?  And  is  not  this 
dealing  witli  the  prohibited  subject 
directly  within  the  terms  of  the  stat- 
ute, and  does  it  not  open  the  door  to 
the    mischiefs    intended    to    be    sup- 


pressed? It  is  not  necessary  that  the 
vendor  should  be  authorized  to  sell 
to  any  applicant,  as  an  ordinary  re- 
tailer, lie  is  not  allowed  to  sell  to 
any  one,  and  the  fact  that  customers 
must  be  members  of  the  association, 
does  not  relieve  him  of  criminal  re- 
sponsibility under  the  mandatory  stat- 
ute. *  *  *  Without  going  into  the 
refinements  which  are  apparent  in 
some  of  the  opinions,  we  are  aol  aide 
to  exempt  the  act  imputed  to  the 
defendant  from  the  denunciation  con- 
veyed in  the  broad  and  comprehensive 
words,  which  forbid  '  any  person  to 
sell  any  spirituous  liquors  '  within 
the  designated  locality."  Per  Smith, 
('.  J. 

50.  State  v.  Xeis,  108  N.  C.  787,  13 
S.  E.  225,  12  L.  K.  A.  412. 

"■  state  v.  Kline  50  Oreg.  42G,  93 
Pac  237.    Per  Moore,  J. 


650  SALES    BY    SOCIAL    CLUBS.  [§    59X 

in  common,  and  formed  for  social,  literary  or  other  purposes  to 
which  the  furnishing  of  liquor  to  its  members  would  be  incidental 
merely,  the  furnishing  of  liquors  to  such  members  is  not  a  sale 
within  the  license  laws  prohibiting  the  keeping  of  any  house,  room 
or  place,  inn  or  tavern  for  sale  of  liquors  without  a  license  first  had 
and  obtained.58  And  the  fact  that  the  result  of  permitting  clubs 
to  furnish  liquor  to  their  members  would  be  to  deprive  licensed 
hotels  of  their  patronage  to  which  they  are  impliedly  entitled  by  the 
payment  of  heavy  license  fees,  is  a  subject  for  the  consideration 
of  the  legislature  and  not  of  the  courts.59  And  in  view  of  the  fact 
that  at  the  time  a  liquor  license  act  was  passed  it  was  known  to 
every  one  that  for  a  long  period  of  years  clubs  had  openly  and 
notoriously  furnished  liquor  to  their  members,  the  implication  is 
that  if  the  legislature  had  intended  to  prohibit  the  practice  it 
would  have  done  so  in  express  terms.60  But  if  the  object  of  an 
organized  club  is  merely  to  provide  members  with  a  convenient 
method  of  obtaining  a  drink  whenever  they  desire,  or  if  the  form 
of  membership  is  no  more  than  a  pretense  so  that  any  person  with- 
out discrimination  can  procure  liquor  by  signing  his  name  in  a 
book,  or  buying  a  ticket  or  a  chip,  thus  enabling  the  buyer  to  con- 
duct an  illicit  traffic,  such  an  organization  falls  within  the  terms  of 
the  liquor  license  act.61  So  where  an  organization  was  a  club  in 
form  merely,  and  the  evidence  showed  that  it  was  a  mere  sham  or 
device  to  evade  the  license  laws  and  in  fact  a  barroom  where  liquor 
was  sold  without  a  license,  it  was  held  that  it  was  not  error  to  in- 
struct the  jury  that  if  they  believed  the  testimony  it  was  their  duty 
to  find  the  defendant  guilty  of  that  with  which  he  was  charged, 


58.  Klein   v.   Livingston   Club,   177  94,           55  Am.  St.  Rep.  717. 

Pa.  St.  224,  35  Atl.  GOG,  34  L.  R.  A.  60.  Klein   v.   Livingston   Club,   177 

94,    55   Am.   St.   Rep.   717.     See  also  Pa.  St.  224,  35  Atl.  606,  34  L.  R.  A. 

Commonwealth  v.  Smith,  2  Pa.  Dist.  94,  55  Am.  St.  Rep.  717. 

Rep.  474.  61.  Klein    v.    Livingston   Club,    177 

•"»!>•  Klein    v.   Livingston   Club,   177  Pa.  St.  224,  35  Atl.  60G,  34  L.  R.  A. 

Pa.  St.  224,  36  Atl.  606,  34  L.  R.  A.  94,  55  Am.   St.  Rep.  717. 


g  g99]  SALES    nv    social   I  1.1  BS.  651 

namely,  selling  liquor  without  a  License.82     And  in  another  c 
in  Pennsylvania  it  is  declared  that  an  unlicensed  Bale  of  liquor, 
under  the  guise  of  club  distribution,  in  an  attempt  to  evade  the  law. 
is  clearly  unlawful  and  the  law  will  look  through  all  disguises  and 
so  pronounce  it.88 

§  599.  South  Carolina. 

Where  the  eluh  is  a  device  to  evade  the  law,  it  is  subject  to  law 
and  the  statute,  but  the  court  favors  the  view  that  if  a  bona  fi<l<-  club 
is  conducted  in  good  faith  there  is  not  a  sale  within  the  statute.'11 
"  As  1  understand  it  the  law  does  not  prohibit  the  use  of  liquors, 
but  merely  regulates  the  sale  by  indicating  certain  persons,  who 
may  sell  upon  certain  conditions,  one  of  which  is  the  production 
of  a  license,  which  can  only  be  procured  by  paying  for  the  same  a 
fee  or  tax.  The  club  owned  the  liquors  and  we  suppose  that  each 
of  its  members  had  the  right  to  use  his  part  of  them  as  he  pl<  a 
When  he  called  for  his  share  or  any  part  of  it,  and  the  same  was 
delivered  to  him  subject  to  account,  can  we  say  that  was  an  'un- 
lawful sale'  in  the  sense  of  the  law?  It  seems  to  us  that  such 
view  is  very  technical  and  that  the  more  reasonable  construction 
is,  that  the  regulations  of  the  club  amounted  substantially  to  a 
method  of  dividing  the  property  among  its  members."66  And  in 
a  recent  case  in  South  Carolina  it  is  said:  "All  the  authorities 
agree  that  when  the  club  is  a  mere  device  to  evade  the  law  against 
the  sale  of  liquors,  and  its  real  or  main  purpose  i-  to  provide  liq- 
uors for  its  members,  and  such  liquors  are  delivered  at  a  price 
paid,  or  agreed  to  be  paid,  there  is  a  sale.'*  6Ba 

62.  Commonwealth  v.  Tiorney.  148  <>•"•  Columbia  Club  v.  McMaster,  35 

Pa.  St.  »rv2,  24  Atl.  til.  p.  <•    i.  i  t  s.  K.  290,  28  Am.  St.  Rep. 

63.  Commonwealth  v.   Brem.  5   Pa.      s._)|;      1V).  Mr    ,Ill<Ii(,.  McGowan. 

Dist.    Rep.    lot:     Commonwealth    v. 

F  ' ,    _        ,_.  65a.  State    <  x    rel.    Lvnn    v.    fitv 

Smith,  2  Pa.  Dist.   Rep.  4/4. 

64.  Columbia  Club  v.  McMaster,  35      Club    <s-   <"'•    inn0>-    65   s-   E-    73°- 
S.  C.  1.  14  S.  E.  200.  28  Am.  St.  Rep.      Per  Jones,  C.  J. 

820. 


g52  SALES    BY    SOCIAL    CLUBS.  [§   600 

§  600.  Tennessee. 

In  an  early  case  in  Tennessee  it  was  held  that  a  club  was  liable 
to  pay  the  tax  under  an  act  providing  that  a  certain  sum  should 
be  paid  for  "  every  club  room  where  liquors  of  any  kind  are 
kept."  66  In  a  later  case  in  Tennessee,  however,  it  was  decided 
that  a  social  club  organized  and  conducted  in  good  faith  as  such 
and  which  kept  some  liquors  in  stock  for  the  use  of  its  members 
who  paid  for  each  drink  as  it  was  taken,  no  profit  being  made  by 
the  club  upon  such  sales  was  not  within  the  meaning  of  a  statute 
requiring  retail  liquor  dealers  to  pay  a  privilege  tax.67  And  in  a 
recent  case  it  was  held  that  where  the  evidence  showed  that  a 
lodge  was  a  bona  fide  one  and  that  the  furnishing  of  liquor  was 
purely  incidental,  that  the  lodge  was  not  engaged  in  the  "  hand- 
ling of  liquor  for  sale."  The  court  said  in  this  connection:  "  It 
may  be  proper  to  observe  in  conclusion,  that  it  is  a  matter  of 
common  knowledge,  of  which  we  may  take  judicial  notice,  that 
since  the  legislative  enactment  of  the  various  statutes  extending 
from  time  to  time  the  territorial  scope  within  which  intoxicatng 
liquors  cannot  be  legally  sold,  clubs  have  sprung  up  in  great  num- 
bers in  different  localities,  and  obtained  charters,  whose  apparent 
purpose  is  to  evade,  if  possible,  under  the  forms  of  law,  the  effect 
of  these  statutes.  It  is  hardly  necessary  to  say  that  such  a  club 
can  find  no  warrant  for  its  existence  in  the  preset  holding.  Where- 
ever,  in  any  case,  the  legality  of  its  action  in  this  regard  is  chal- 
lenged by  the  state,  it  will  be  the  duty  of  the  court  to  scrutinize 
closely,  in  order  to  see  that  no  such  device  is  attended  with  suc- 
ci  ss.  In  every  case,  when  the  serving  of  liquor  to  members,  or 
others,  is  the  principal  purpose,  or  one  of  the  chief  objects,  of 
such  an  organization,  and  not  a  mere  incident,  or  when  it  is  sold 
for  profit,  this  being  carried  into  a  general  fund  for  the  payment 
of  salaries,  or  for  distributing  among  its  members,  or  otherwise, 


«;<;.  Tennessee  Club  v.  State,  7  Lea  67.  Tennessee    Club   v.    Dwyer,    11 

(Tenn.)  291.  Lea  (Tenn.)  452,  47  Am.  Rep.  298. 


§§  601,602,603]       SALES    BY    SO<  LAL   CLUBS.  653 

the  disguise  should  and  will  be  uncovered,  and  the  club  and  itfl 
members  made  amenable  to  the  law."  c7a 

§  601.  Texas. 

In  Texas  it  has  been  decided  that  a  club  in  which  intoxicants 
were  furnished  to  members  without  profit  is  not  a  "  public  house  " 
or  "  a  house  for  retailing  spirituous  liquors  "  as  used  in  a  statute 
which  forbids  the  playing  of  cards  in  such  a  place.08  But  in  a 
later  case  it  is  decided  that  in  a  local  option  precinct  in  which  the 
sale  of  intoxicants  is  prohibited  except  for  sacramental  and  medic- 
inal purposes,  a  sale  by  a  club  to  one  of  its  members  is  a  sale  within 
the  terms  of  the  statute.09  And  if  the  club  is  a  mere  device  to 
evade  the  liquor  laws  it  is  subject  to  the  operation  of  the  statute.7" 

§  602.  Virginia. 

In  Virginia  the  question  is  determined  on  the  basis  of  the  bona 
fides  of  the  club,  the  doctrine  having  been  followed  that  if  a  bona 
fide  club,  distributing  liquors  only  to  its  members  there  is  not  a 
sale  within  the  meaning  of  the  liquor  laws.71 

§  603.  Washington. 

In  a  recent  case  in  Washington  in  which  such  a  transaction  was 
held  to  be  a  sale  in  violation  of  an  ordinance  forbidding  the  sale 
or  disposal  of  liquors  without  a  license  the  court  said:  "  When  the 
liquor  is  bought  through  the  regularly  constituted  agent  of  the 
corporation,  it  undoubtedly  belongs  to  the  corporation,  the  title, 
as  well  as  the  possession  being  in  the  corporation,  and  it  remains 
there  until  it  is  transferred  To  the  buver  for  a  consideration.     Then 

G7a.  Moriarty  v.   State    (Tenn.    S.  Tex.  20,   33  S.  W.  113,  30  L.  R.  A. 

C.     1909),     124     S.    W.     1010.       Per  505. 

Beard,  C.  J.  iiU-  Finn  v.  State,  38  Tex.  Cr.  75. 

<;*;.  Koenig   v.    State,    33   Tex.    Cr.  41  S.  W.  1102. 

367,  20  S.  W.  835,  followed  in  Winters  70.  Krnavek  v.  State,  38  Tex.  Cr. 

v.   State,   33  Tex.   Cr.   305,  20   S.   W.  44.  41   S.  W.  612. 

839.     See   State   v.   Austin   Club,   89  Tl.  Piedmont     Club     v.     Common- 
wealth, 87  Va.  540,   12  S.  E.  963. 


<;:,4  SALES    BY    SOCIAL    CLUBS.  [§§   604,605 

it  becomes  the  property  of  the  purchaser,  and  is  at  his  absolute  dis- 
posal. He  can  drink  it  himself,  give  it  to  his  guest,  or  throw  it 
away;  the  corporation  has  no  further  interest  in  it.  In  other 
words  it  has  been  paid  for,  and  the  transaction,  it  seems  to  us, 
involves  all  the  elements  of  a  sale.  The  fact  that  the  disposition 
he  article  can  only  be  made  to  a  member  of  the  corporation 
does  not  change  the  character  of  the  transaction.  It  simply  limits 
the  number  of  transactions.  Nor  does  the  fact  that  the  members 
of  the  club  to  whom  the  sale  is  made  have  an  interest  in  the  prop- 
erty affect  the  case."  72 

§  604.  West  Virginia. 

In  West  Virginia  it  is  decided  that  such  disposal  of  liquors  is 
within  a  statute  of  that  state  requiring  a  license,  it  being  declared 
that  the  statute  is  so  broad  as  to  allow  no  shift  or  device  to  defeat 
the  purpose  of  its  enactment  as  it  plainly  forbids  the  selling,  offer- 
ing or  exposing  for  sale  by  one  person  to  another  of  the  forbidden 
intoxicants  without  a  state  license,  no  matter  for  what  purpose, 
literary,  social  or  otherwise.73 

§  605.  United  States. 

Where  a  statute  requires  that  a  license  fee  be  paid  by  retail 
dealers  in  malt  liquors  and  defines  a  retail  dealer  as  "  Every  person 
who  sells  or  offers  for  sale,  malt  liquors  in  less  quantities  than  five 
gallons  at  one  time,  but  who  does  not  deal  in  spirituous  liquors 
shall  be  regarded  as  a  dealer  in  malt  liquors,"  it  has  been  decided 
that  there  was  a  sale  within  the  meaning  of  the  statute  where  an 
incorporated  benefit  association  sold  tickets  to  its  members  for 
five  cents  each,  each  of  which  tickets  entitled  the  one  presenting 


72.  City  of  Spokane  v.  Baughman,  "  Although  a  different  rule  may  pre- 
(Wash.  1909),  103  Pac.  14.  Per  vail  in  other  states  this  is  the  only 
Dunbar,  J.  reasonable    conclusion    that    can    be 

73.  State  v.  Shumate,  44  W.  Va.  reached  under  our  statute."  Per 
490,  29  S.  E.  1001.     The  court  said:  Dent,  J. 


K   ,;,„;]  SALES    Bl     SOCIAL    CLUBS.  655 

it  to  a  glass  of  beer,  which  beer  had  been  purchased  by  the  associa- 
tion and  was  its  property.7'1 

§  606.  England. 

In  a  case  in  England  which  is  frequently  referred  to  the  view 
is  taken  that  a  sale  to  a  m<  mber  of  whal  is  known  as  a  mi  mb  re' 
club,  and  which  is  a  bona  fide  club  is  not  a  sale  within  the  meaning 
of  a  licensing  act.  It  appeared  in  this  case  that  the  club  was  ad- 
mittedly a  bona  fide  club,  having  trustees  in  whom  by  the  rules  of 
the  club  all  the  club  property  was  vested.  The  members  of*  tin-  club 
could  procure  liquors  in  the  club  on  payment  for  the  same,  the 
receipts  for  same  going  to  the  general  funds  of  the  club,  the  profits 
from  such  disbursements  of  liquor  being  about  thirty-three  per 
cent.  The  court  in  its  opinion  said:  "  A  sale  involves  in  it  some- 
thing in  the  nature  of  a  bargain.  Here  there  was  no  bargaining  or 
any  contract  between  the  members  and  Graff  with  respect  to  this 
liquor.  It  is  part  of  the  terms  of  membership  that  every  member 
shall  be  entitled  to  obtain  a  bottle  of  wine  or  other  liquor  on  pay- 
ment of  the  price  fixed  for  it  by  the  committee.  Foster  was  acting 
solely  and  within  his  right  as  a  club  member,  not  by  reason  of  any 
new  contract,  but  by  reason  of  his  old  contract  of  association,  by 
which,  upon  his  subscribing  a  certain  yearly  or  other  periodical 
sum  to  the  funds  of  the  club  he  became  entitled  to  have  liquor 
supplied  to  him  as  a  member.  .  .  It  was  I  think  a  transfer  of  a 
special  property  or  partial  interest  in  the  liquor  to  Foster,  but  it 
was  not  a  sale.'' 75  In  a  later  case  in  England  where  defendants, 
who  were  trustees  of  a  club,  had  been  convicted  under  the  Licensing 
Acts  for  selling  liquor  to  persons  who  were  not  members  of  the 
club,  and  it  was  found  as  a  fact  that  the  steward  was  employed  by 
the  committee  and  paid  by  the  trustees  and  that  his  orders  were 
not  to  serve  anyone  but  members  of  the  club,  it  was  held  that 


74.  United  States  v.  Ciller,  54  Fed.  7."..  CratT  v.   Evans,    l<;  La*  Times 

656.  R.  X-   S.  347.      Per  Field,  J. 


g56  SALES    BY    SOCIAL    CLUBS.  [§    QQQ 

the  conviction  was  wrong*  on  the  ground  that  a  master  or  principal 
is  not  liable  for  a  sale  in  such  a  case  by  an  agent  in  direct  violation 
of  bona  fide  orders,  and  made  without  his  knowledge  or  assent, 
direct  or  indirect.70  In  a  case  which  subsequently  arose  it  ap- 
peared that  a  club  was  carried  on  by  a  limited  company,  that  all 
liquor  drank  at  the  club  belonged  to  the  company  and  not  the  mem- 
bers and  that  all  profit  from  the  sale  of  liquor  went  to  the  com- 
pany. Under  the  rules  of  the  club  a  person  who  was  not  a  share- 
holder was  elected  by  a  sub-committee  as  an  honorary  member 
pending  inquiries,  and  by  such  rules  pending  the  final  election  he 
was  entitled  to  all  the  privileges  of  the  club.  A  person  was  so 
elected,  paid  his  subscription  but  was  subsequently  rejected  and 
his  subscription  returned.  Between  the  time  of  his  election  and 
rejection  he  was  supplied  with  liquors  for  which  he  paid,  and  this 
was  held  to  constitute  sales  of  liquor  to  him  within  the  meaning 
of  the  licensing  acts  and  it  was  decided  that  the  club  should  obtain 
a  license  under  such  laws.77  This  case  was  decided  upon  the  prin- 
ciple that  the  club  was  a  proprietary  club  and  not  a  purely  mem- 
bers' club.  And  the  principle  controlling  in  this  case  was  followed 
in  one  decided  a  few  years  later.    In  a  subsequent  case  it  appeared 


76.  Newman  v.  Jones,  55  Law  agreed  further  that  they  were  under 
Times  Rep.  N.  S.  327.  no  obligation  to   furnish  to  members 

77.  Bowyer  v.  Percy  Supper  Club  of  the  club  any  special  wine  or  any 
Limited,  G9  Law  Times  Rep.  N.  S.  particular  spirits.  They  supplied 
447.  The  court  said:  "We  are  deal-  them  as  they  thought  proper  out  of 
ing  with  the  facts  of  this  case  only,  their  own  stock,  and  I  am  wholly  un- 
and  the  constitution  of  this  so  called  able  to  see  any  distinction  in  princi- 
club,  was  that  the  members,  upon  pie  between  this,  and  the  case  of  a 
payment  of  certain  subscriptions,  be-  friendly  society  arranging  with  the 
came  entitled  to  the  use  of  this  house,  landlord  of  a  public  house  that  they 
and  to  the  accomodation  which  the  shall  have  the  use  of  a  room  on  cer- 
house  afforded,  and  were  further  en-  tain  occasions,  and  be  supplied  by 
titled  to  enter  into  contracts  for  the  him  with  liquors.  In  that  case  a  li- 
purehase  of  wines  and  spirits  with  cense  would  be  necessary  and  this 
the  proprietors  out  of  their  stock.  It  case  seems  to  me  to  be  so  closely 
is  agreed  on  all  hands  that  the  stock  analogous  that  the  same  course  would 
of  wines  and  spirits  in  this  place  be-  follow."    Per  Mathew,  J. 

longed    to    the    properietors.       It    is 


SALES    BY    SOCIAL    CLUBS. 


65 


that  the  members  of  a  club  formed  it  into  a  joint  stock  company. 
There  was  no  rule  or  by-law  which  prevented  other  than  members 
from  holding  shares  in  the  company  and  subsequently  some  of  the 
shares  came  into  the  hands  of  persons  who  were  not  members.  Af- 
ter this  had  taken  place  the  question  came  before  the  courts  as  to 
the  right  of  the  company  to  sell  liquors  without  a  license  and  it 
was  held  that  the  sale  under  such  circumstances  to  members  was  in 
fact  a  sale  within  the  meaning  of  the  law,  the  company  being  a 
separate  legal  entity  from  the  members  of  the  club.78 


§  607.  Conclusion. 

From  an  examination  of  the  cases  in  the  preceding  sections  it 
will  be  seen  that  the  courts  are  not  in  harmony  upon  the  question 
of  the  right  of  social  clubs,  organized  and  conducted  in  good  faith, 
to  sell  or  dispose  of  liquors  to  its  members.  We  think,  however. 
the  following  conclusion  seems  now  to  be  favored  by  the  weight  of 
authority  and  by  the  latest  decisions,  that  is  that  though  a  club 


78.  National  Sporting  Club  Lim- 
ited v.  Cope,  82  Law  Times  R.  N. 
S.  352.  The  court  said:  "As  a  mat- 
ter of  fact  there  are  other  than  mem- 
bers in  the  company.  It  is  said  that 
their  number  is  few,  and  that  their 
presence  arises  from  accidental  cir- 
cumstances, people  who  were  members 
and  shareholders  having  died  or  re- 
signed  their  membership.  However 
there  are  some  outside  shareholders, 
and  there  being  some  we  have  got  a 
legal  entity  (the  corporation)  which 
is  not  either  in  law  or  in  fact  identi- 
cal with  the  members  of  the  club. 
It  is  to  this  outside  body  thai  the 
property  of  the  club  belongs,  and  if 
the  members  of  the  club  in  buying 
any  of  that  property,  by  taking  a 
glass  of  whisky  or  whatever  it  is.  are 
distributing  some  common  property, 
they  are  distributing  not  their  own 
common    property,    but    the    common 


property  of  a  different  body, — the 
shareholders  of  the  company.  The 
consequence  is  that  this  case  is 
brought  within  the  principle  applic- 
able to  an  ordinary  proprietary  club. 
The  proprietor  in  this  case  is  incor- 
porated, but  the  proprietor  makes 
profits  out  of  this  club  and  pays  divi- 
dents,  and  there  are  some  few  share- 
holders who  are  not  members  of  the 
club  who  are  actually  taking  profits, 
arising  from  the  sale  of  the  liquors, 
or  at  any  rate  from  the  general  carry- 
ing on  of  the  club  in  which  the  liq- 
uors are  sold,  and  of  which  the  sell- 
ing of  the  liquor  forms  part.  It 
aeems  to  me  quite  impossible  to  brim.' 
this  ease  within  the  principle  of  mem- 
bers clubs.  It  comes  within  the  prin- 
ciple  applicable  to  a  proprietary  club 
where  there  is  a  sale  of  liquors.  And 
it  is  a  sale  by  retail."  Per  Channell, 
J. 


658  SALES    BY    SOCIAL   CLUBS.  [§   6(j7 

may  be  organized  and  conducted  in  good  faith  as  a  social  club,  yet 
in  the  absence  of  some  statute  authorizing  it,  such  club  has  no 
right  under  the  liquor  laws  to  sell  or  dispose  of  liquor  to  its  mem- 
bers, such  drinks  being  paid  for  or  charged  to  the  members,  and 
that  a  transaction  of  this  character  is  a  sale  within  the  meaning 
of  a  license  or  prohibition  law.  Another  proposition  which  may 
be  stated  as  clearly  the  law  is  that  if  the  club  is  organized  and 
conducted  as  a  mere  scheme  to  evade  the  liquor  laws  then  it  is 
subject  to  the  operation  of  such  laws. 


§    608]  INJUNCTION    AND    ABATEMENT.  659 


CHAPTER  XXIII. 

INJ UNCTION  AND  ABATEMENT. 

Section  G08.  When  traffic  a  nuisance — generally. 
GOO.  Right  of  individuals  to  abate. 

010.  Injunction  and  abatement — statute  as  to  constitutional, 
till.  Particular  statutes  construed. 

612.  Statute  authorizing  proceeding  in  equity. 

613.  Municipal  powers  generally. 

614.  Nature  of  proceeding. 

615.  Remedy  by  injunction — generally. 

616.  Injunction — instances. 

617.  Temporary  injunction. 

618.  Right  of  individual — private  nuisance. 

619.  Right  to  a  second  injunction. 

620.  Who  may  be  enjoined. 

621.  Injunction  against  owner  of  building — when  granted. 

622.  Injunction  against  owner  of  building— when  not  granted. 

623.  Covenant  not  to  sell  liquors — enjoining  breach  of. 

624.  Who  may  institute  proceedings. 

625.  Petition — form  and  sufficiency  of. 

626.  Answer. 

627.  Evidence. 

628.  Defenses — generally. 

t>2!>.  Effect  of  discontinuance  of  nuisance. 

630.  Judgment  or  decree. 

631.  Modifying  decree. 

(i.'lj.  Contempt — proceedings  to  punish  for — nature  of. 

633.  Contempt — sufficiency  of  information. 

634.  Contempt — what  constitutes. 

635.  Effect  of  appearance  in  court — contempt. 

636.  Conviction  as  prerequisite  to  abatement. 

§  608.  When  traffic  a  nuisance — generally. 

Where  the  liquor  business  is  a  legally  legitimate  one,  it  is  not 


6(30  INJUNCTION    AND    ABATEMENT.  [§    609 

a  nuisance  per  se  and  not  a  thing  or  occupation  that  must  neces- 
sarily become  a  nuisance.1  But  where  a  person  sells  liquors  in 
violation  of  law  his  business  is  thereby  rendered  illegal  and  its 
continuance  may  be  enjoined  as  a  nuisance  under  the  statute,  not 
merely  because  of  such  violation  but  on  the  ground  that  the  con- 
tinuance of  the  business  thereafter  is  the  maintenance  of  a 
nuisance.2  And  unless  the  statute  so  provides  a  place  need  not  be 
kept  in  a  disorderly  manner  to  render  it  a  nuisance.3 

§  609.  Right  of  individual  to  abate. 

Though  a  statute  may  declare  that  places  where  liquors  are  sold 
shall  under  certain  circumstances  be  considered  as  nuisances  and 
may  be  abated,  yet  they  can  only  be  abated  by  due  process  of  law, 
and  such  a  statute  does  not  justify  their  abatement  by  an  individual 
without  proceeding  as  authorized  by  law.4  So  in  a  recent  case  it 
is  said :  "  Intoxicating  liquors,  whether  exposed  for  sale  unlawfully 
or  not,  are  property  in  the  District  of  Columbia,  and  can  not  be 

l«  De   Blanc   v.   Mayor   and   Board  and  a  public  nuisance  which  a  court 

of  Trustees,  106  La.  680,  31  So.  311,  of  equity  at  the  instance  of  the  state 

56  L.  R.  A.  285.  may     enjoin.       Dispensary     Commis- 

In  Iowa  it  is  decided  that  the  mulct  sioners  of  Lee  County  v.  Hooper,  128 

law  is  a  modification  of  the  original  Ga.  99,  56  S.  E.  997. 
prohibitory  statutes  to  the  extent  that  To  constitute  a  liquor  nuisance  it 

a  liquor  dealer  who  has  complied  with  is    not    essential    that   the    public    or 

all   the   conditions   thereof   cannot   be  even  a  considerable  portion  of  it,  be 

enjoined    from    the    operation    of    his  admitted    or    enticed    there    to    drink 

business  on   the  ground  that  it  is  a  intoxicants.     It  is   sufficient   if   some 

nuisance    as    was    formerly    the   case.  persons  are  permitted  to  resort  there 

Campbell  v.  Jackman  Bros.,  140  Iowa  for     such     purpose.       State     ex     rel. 

475.    118  N.  W.  755,  citing  State  v.  Lyon  v.  City  Club    (S.  C.  1909),  65 

Van   Vliet,    92   Iowa   476,    61    N.    W.  S.   E.  730. 

241 ;  MeKeever  v.  Beacom,  101  Iowa  3.  Howard  v.  State,  6  Ind.  444. 

173,  70  N.  W.   112;    Phillips  v.  Gif-  4.  State  v.  Stark,  63  Kan.  529,  66 

ford,   104  Iowa  458.  73  N.   W.   1033;  Pac.  243,  54  L.  R.  A.  910,  88  Am.  St. 

Iowa    City    v.    McQuerry,    114    Iowa  Rep.   251,   holding   that   one  who   de- 

586,  87   N.   W.   498.  stroys    or    injures    property    used    in 

2.  Hammond    v.    King,     137    Iowa  maintaining  such   a   nuisance,   except 

548,  114  N.  W.  1062.  as    provided    by   law    is    guilty    of   a 

Where   the    sale    of    liquor   is   pro-  trespass.     See  also  Brown  v.  Perkins, 

hibited    a    sale    thereof    is    unlawful  12  Gray   (Mass.)   89. 


£   610]  INJUNCTION    AND    ABATEMENT.  661 

taken  and  destroyed,  save  by  due  process  of  law.  Assuming  for 
the  sake  of  argument,  that  the  keeping  for  sale  without  license 
constitutes  a  public  nuisance,  as  well  as  an  offense,  the  fact  affords 
neither  justification  nor  excuse  for  their  destruction  by  the  defend- 
ant. The  sale  of  intoxicating  liquors  without  license  is  prohibited 
by  law,  and  may  be  prevented  and  punished,  but  this  can  only  In- 
done  through  the  agencies  and  in  the  manner  provided  by  the  law. 
The  abatement  of  public  nuisances  and  the  enforcement  of  the 
penal  laws  are  matters  of  public  duty  and  administration,  and  the 
interference  of  private  persons,  save  in  the  making  of  complaints 
before  the  proper  public  officers  and  tribunals,  is  itself  a  nuisance, 
which,  if  accompanied  by  acts  of  violence,  renders  the  wrongdn.-r 
liable  both  to  civil  action  and  criminal  prosecution.  Mob  law 
can  have  no  recognition  in  our  system  and  should  be  sternly  re- 
pressed in  its  beginning."  5 

§  610.  Injunction  and  abatement — statutes  as  to  constitutional. 
In  several  states  statutes  are  in  force  making  the  sale  of  in- 
toxicating liquors  under  certain  conditions  a  nuisance  and  pro- 
viding for  proceedings  to  enjoin  or  abate  the  same.  Statutes  of 
this  character  have  uniformly  been  held  to  be  constitutional.6  So 
it  has  been  said  by  the  United  States  Supreme  Court :  "  The  state 
having  authority  to  prohibit  the  manufacture  and  sale  of  intoxica- 
ting liquors  for  other  than  medical,  scientific  and  mechanical 
purposes,  we  do  not  doubt  her  power  to  declare  that  any  place, 
kept  and  maintained  for  the  illegal  manufacture  and  sale  of  such 

<>•  Nation  v.  District  of  Columbia,  Maine. — Davis  v.  Auld,  90  Me.  559, 

38    Wash.    Law    Rep.    144.      Per    Mr.       53  ^tl.  jig. 

Chief  Justice  Shepard.  Maasachuaetts.-Cxrl&m    v.   Rugg, 

6.  Illinois. — Streeter   v.   People,   69  ^  ^         ^_ 

'  149  Mass.  550,  22  N.  E.  55,  5  L.  R.  A. 

Iowa*— McLane  v.  Leicht,  69  Iowa  193,  14  Am.  St.  Rep.  446. 

402,  29  N.  W.  327  ;  Littleton  v.  Fritz,  Texas. — Burckell  v.  State.  47  Tex. 

65  Iowa  488,  22  N.  W.  641,  54  Am.  Civ.  App.  393.  106  S.  W.  190. 
Rep.  19. 


662  INJUNCTION    AND    ABATEMENT.  [§   611 

liquors,  shall  be  deemed  a  common  nuisance,  and  be  abated,  and 
at  the  same  time,  to  provide  for  the  indictment  and  trial  of  the 
offender.  One  is  a  proceeding  against  the  property  used  for  for- 
bidden purposes,  while  the  other  is  for  the  punishment  of  the 
offender."  7 

§  611.  Particular  statutes  construed. 

It  is  constitutional  for  the  legislature  to  declare  that  the  sale  of 
liquors  without  a  license  is  a  public  nuisance.8  And  the  legis- 
lature has  the  power  to  declare  a  place  where  intoxicating  liquors 
are  sold,  in  violation  of  law  to  be  drank  on  the  premises  a  nuisance 
and  it  is  not  a  cruel  or  unusual  puishment  to  provide  for  the 
abatement  of  such  a  nuisance.9  So  a  statute  providing  that  "  evi- 
dence of  the  sale,  or  keeping  of  intoxicating  liquors  for  sale,  in 
any  building,  place,  or  tenement,  shall  be  evidence  that  the  sale 
or  keeping  is  illegal,  and  that  such  premises  are  nuisances,"  has 
been  held  to  be  constitutional.10  And  where  a  nuisance  is  created 
by  the  illegal  sale  of  liquors,  a  place  is  a  nuisance  where  illegal 
sales  are  made  without  regard  to  whether  the  liquors  are  kept  at 
such  place.11  But  a  statute  declaring  places  and  buildings  in  which 
intoxicating  liquors  are  sold  or  kept  for  sale  to  be  common  nui- 
sances does  not  authorize  the  destruction  of  such  buildings  by  pri- 
vate individuals  or  by  the  public  authorities,  as  the  abatement  of  a 
nuisance  caused  by  the  illegal  use  of  a  building  should  consist  in 
the  prevention  of  the  future  illegal  use  and  not  in  the  destruction 
of  the  building.12  And  a  proceeding  to  close  up  a  place  as  a 
nuisance  being  statutory,  the  substance  of  the  statute  must  be 
complied  with  in  order  to  legally  close  it,  and  if  it  is  not  so  legally 

7.  Mugler    v.    Kansas,    123    U.    S.  »•  McLaughlin    v.    State,    45    Ind. 

623,    671,    37    L.    Ed.    205,    Sup    Ct.       338- 

D      ,,      T     ,      n    ,  lO.  State  v.  Mellor,  13  R.  I.  666. 

Per  Mr.  Justice  Harlan. 

11.  State  v.  Viers,  82  Iowa  397,  48 


S.  Burckell   v.   State,   47   Tex.   Civ. 


N.  W.  732. 


App.  39.3,  106  S.  W.  190.  12.  state  v.  Paul,  5  R.  I.  185. 


§§  012,613]  INJUNCTION    AND    ABATEMENT.  663 

closed  it  is  not  illegal  to  reopen  it  without  giving  the  bond  required 
by  statute.13 

§  612.  Statute  authorizing  proceeding  in  equity. 

A  statute  may  validly  authorize  a  suit  in  a  court  of  equity 
to  abate  a  liquor  nuisance.14  So  the  facl  thai  the  state  by  statute 
or  common  law  can  proceed,  and  has  hitherto  proceeded  by  criminal 
prosecution  to  punish  for  the  maintenance  of  a  public  auisi 
and  also  to  abate  the  nuisance,  does  not  prevent  the  legislature 
authorizing  it  to  proceed  in  equity  to  restrain,  enjoin  or  abate  such 
a  nuisance,  by  the  use  of  the  equity  writ  of  injunction.15  Such  an 
act  providing  for  a  proceeding  in  equity  to  enjoin  and  abate  a 
liquor  nuisance  is  not  unconstitutional  as  depriving  a  defendant 
of  the  right  of  trial  by  jury  nor  as  being  an  attempt  by  the  legis- 
lature to  enforce  a  criminal  law  by  a  civil  action  nor  because  it 
authorizes  any  citizen  of  the  county  to  maintain  the  action  without 
showing  that  he  is  especially  damaged  by  the  nuisance.16 

§  613.  Municipal  powers  generally. 

The  municipal  authorities  may  under  a  proper  delegation  of 
power  enact  ordinances  declaring  places  where  liquors  are  sold  in 
violation  of  law,  or  in  places  of  a  certain  class,  to  be  nuisances.11 

13.  state  v.  Clark,  62  Vt.  278,  19  properly  be  determined  by  a  jury. 
,\tl.  981.  State  v.   Saunders,   66  X.   H.   39,  •-'■"> 

14.  Eilenbecker  v.  Plymouth       Atl.  588  9  L.  R.  A.  271. 

County  District  Court,  134  U.  S.  31,  17.  A,    code    provision    authorizing 

10  Sup.  Ct.  424,  33  L.  Ed.  801.  a  municipality  <"  abate  a  liquor  nui- 

15.  Davis  v.  Auld,  96  Me.  559,  53  sauce  by  the  closing  of  the  building 
Atl.  118.  i»  which  it  is  maintained  "as  against 

16.  Littleton  v.  Fritz,  65  Iowa  488,  the  use  or  occupation  of  the  Bame 
22  X.  W.  641,  54  Am.  Rep.  19.  fol-  for  saloon  purposes  "  has  been  held 
lowed  in  Pontius  v.  Bowman  Bros.  to  confer  power  upon  the  municipal- 
66  Iowa  88.  23  X.  YV.  277.  ity  to  so  close  a  building  used  for  the 

The  defendant  is  not  entitled  to  a  purposes    of    a     brewery.      Craig    v. 

jury  trial  as  a  matter  of  right  in  a  Werthmueller,  78  Iowa  .vs.  4-'?  X.  W. 

proceeding  for  an  injunction,  but  the  606.  per  Given,  ('.  J.    The  court  said: 

only   question   being   tin'   existence  of  "The    words    'saloon     purposes'     as 

an  alleged  illegal  use,  that  issue  may  here  u-ed  mean  more  than  simply  a 


(5(J4  INJUNCTION    AND    ABATEMENT.  [§    (J14 

So  where  a  city  council  in  the  exercise  of  their  judgment  and  dis- 
cretion in  discharging  the  legislative  function  declared  that  places 
where  hop  ale,  hop  and  malt  mead  or  cider  were  sold  were  nui- 
sances, it  was  held  that  their  determination  was  conclusive.18 
And  it  has  been  held  to  be  a  valid  exercise  of  the  power  of  a  muni- 
cipality over  nuisances  to  prohibit  the  using  or  keeping  of  in- 
toxicating liquors  in  places  of  a  certain  class,  such  as  refreshment 
saloons  or  restaurants.19  And  an  ordinance  of  a  city  to  the  effect 
that  all  places  where  persons  are  permitted  to  resort  for  the  pur- 
pose of  drinking  intoxicating  liquors  in  violation  of  law  are  com- 
mon nuisances  has  been  held  not  to  violate  a  constitutional  pro- 
vision that  all  men  are  possessed  of  equal  and  inalienable  natural 
rights  among  which  are  life,  liberty  and  the  pursuit  of  happiness.20 
But  where  the  liquor  business  is  conducted  under  a  license  from 
a  municipality,  it  is  legal,  and  town  authorities  have  no  power  to 
single  out  a  certain  saloon,  arbitrarily  declare  it  a  nuisance  and 
order  it  closed  and  if  the  order  be  not  obeyed  fine  the  proprietor 
for  not  obeying.21 

§  614.  Nature  of  proceeding. 

A   petition   for   an   injunction   is   a   civil   proceeding.22      And 

place    for    the    retail    of   intoxicating  the   unlawful    manufacturing,    selling 

drinks.      The    evident    intent    of    the  or  keeping  for  sale  of  intoxicating  liq- 

legislature    is    that    the    court    shall  uors." 

order    the   abatement   of   every    place  18.  Laugel  v.  City  of  Bushnell,  197 

established   to   be   a   nuisance,    either  111.  20,  63  N.  E.  1086,  affg.  Laugel  v.. 

by  being  maintained  for  the  unlawful  City  of  Bushnell,  96  111.  App.  618. 

manufacturing,  selling  or  keeping  of  *»•  State  v.   Clark,   28   N.  H.   176, 

intoxicating  liquors.      It  would  be  a  61  Am.  Dec.  61. 

manifest  disregard  of  the   legislative  20.  City  of  Topeka  v.   Raynor,   61 

intent    to    say    that    these    nuisances  Kan.  10,  58  Pac.  557. 

should  not  be  abated  by  being  closed,  21.  De  Blanc  v.  Mayor  and  Board 

as  provided  in  the  statute,  simply  be-  of  Trustees,  106  La.  680,  31  So.  311, 

cause  they  are  not  generaly  designated  56  L.  R.  A.  285. 

as      'saloons.'        The      term      saloon,  22.  State  v.  Collins,  68  N.  H.  299, 

though    often    differently    applied,    as  44  Atl.  495. 

used   in  this  statute,  has  reference  to  So  in  Vermont  it  has  been  held  that 

places  that  are  nuisances  by  reason  of  a    proceeding    in    chancery    to    enjoin 


8    ,(ir,j  INJUNCTION    AND    ABATEMENT.  665 

where  the  statute  so  provides  a  proceeding  in  equity  to  enjoin  a 
liquor  nuisance  is  to  be  governed  by  the  general  rules  of  equity 

procedure,  but  it  is  not  subject  in  every  respect  to  the  general 
rules  of  equity  pleading.23  And  the  procedure  under  a  statute 
providing  for  an  injunction  being  according  to  the  ordinary  civil 
procedure  in  equity,  the  petition  can  be  sustained  upon  a  1. 
preponderance  of  evidence  in  favor  thereof,  since  none  of  the  re- 
sults of  a  conviction  for  crime  follow.24 

§  615.  Remedy  by  injunction  generally. 

The  function  of  courts  of  equity  is  the  protection  of  private 
property  and  civil  rights,  except  when  enlarged  by  statute  and 
they  will  not  interfere  by  injunction  to  prevent  or  punish  criminal 
or  immoral  acts  unconnected  with  the  violation  of  a  private  right, 
nor  will  they  enforce  moral  obligations  or  duties,25  So  in  the 
absence  of  a  statute  making  illegal  sales  a  nuisance  and  providing 
for  remedy  by  injunction,  a  court  of  equity  will  not  grant  an 
injunction  to  restrain  such  acts  because  they  are  in  violation  of 
law.26     So  in  a  recent  case  in  Oklahoma  it  is  decided  that  there 

and  abate  a  liquor  nuisance  is  purely  24.  Davis  v.  Auld,  90  Me.   559,  53 

civil  in  character,  being  a  proceeding  Atl.  118. 

to    fix    the    status   of    the    property.  25.  Campbell  v.  Jackman  Bros.,  140 

State   v.   Collins,  74   Vt.   43,   52   Atl.  Iowa  475,  118  N.  W.  755. 

C!)  A   railroad    company    is   not   en- 

And   in   Texas   it  has  been  decided  titled  to  an  injunction  to  restrain  the 

that   a  proceeding  to  enjoin   a   liquor  sale  of   liquors   in   a   particular  town 

nuisance   is  at   most    quasi   criminal.  to  its  employees  on  the  ground  that 

Jelinek    v.    State     (Tex.    Civ.    App.  by  such  sale  they  become  intoxicated 

1908),  115  S.  W.  908.  and  unfit  to  perform  their  labor.     In 

But  in  Kansas  a  proceeding  for  the  such  a  case  the  remedy  of  the  em- 
abatement  of  a  nuisance  has  been  plover  would  be  to  discharge  the  em- 
held  to  be  a  criminal,  and  not  a  civil.  ployee  and  sue  him  ai  law  for 
action.  State  v.  Crawford,  28  Kan.  damages.  Northern  Pacific  R.  R.  Co. 
743.  v.  Whalen,  3  Wash  Ter.  4f>2.  17  Pac. 

23.  Wright  v.  O'Brien,  98  Me.  190,  890. 
56  Atl.  G47:   Examine  Lord  v.  Chad-  UC.  State  ea>  ret.   Attorney  General 

bourne,  42  Me.  429.  66  Am.  Dec.  290;  v.   Schweickardt.    109   Mo.   490.    19   S. 

Black  v.  MeGilvery,  38  Me.  287.  W.  47. 


(366  INJUNCTION    AND    ABATEMENT.  [§   615 

being  no  statute  authorizing  procedure  by  injunction  to  restrain 
the  unlawful  sale  of  liquors,  a  court  of  equity  will  not  interfere 
upon  the  bare  fact  alone  that  the  place  where  liquors  are  sold  is 
unlicensed.27  And  no  court  has  jurisdiction  to  simply  enjoin  one 
from  selling  liquor,  independent  of  the  place  where  the  nuisance 
exists.2S  So  an  injunction  will  not  run  against  a  person  for  the 
mere  selling  of  liquor  in  violation  of  law,  independent  of  the  place 
where  it  is  sold  and  hence  will  be  refused  where  the  evidence 
does  not  show  illegal  sales  or  keeping  for  sale  in  the  place  sought 
to  be  enjoined,  when  suit  was  commenced.29  Again,  where  the 
statute  provides  certain  remedies  and  injunction  is  not  one  of  them, 
injunction  will  not  issue.30  But  a  statute  providing  a  remedy 
for  the  abatement  by  injunction  of  a  liquor  nuisance  is  held  to  be 
cumulative  of  other  remedies  without  regard  to  whether  other 
remedies  provided  by  law  may  be  adequate  and  complete.31  And 
where  in  a  suit  to  enjoin  as  a  nuisance  a  resort  in  which  it  was 
alleged  intoxicating  liquors  were  unlawfully  sold,  the  evidence 
showed  that  the  business  conducted  by  defendant  constituted  a 
public  nuisance  which  was  specially  injurious  to  the  plaintiff,  the 
continuation  of  the  resort  was  properly  enjoined  without  regard  to 


The  illegal  carrying  on  of  the  sale  80  N.   W.  209;   Clark  v.  Riddle,   101 

of  liquors  without  a  license,  when  a  Iowa  270,  70  N.  W.  207. 

license  is  required,  or  in  violation  of  An  injunction  does  not  run  against 

a    local   prohibition   law   unless   it   is  the    person    for    the    mere    selling   of 

declared  to  be  a  nuisance  by  statute,  liquor  in  violation  of  law.     It  oper- 

eannot  be  enjoined,  as  chancery  courts  ates  to  abate  and  enjoin  a  nuisance 

have    no    jurisdiction    to    enjoin    the  conducted    by    him    in    the    building 

commission    of    offenses    against    the  referred   to    in   the   petition,    and   by 

criminal    laws    of    the    state.      Pike  operation  of  law  is  extended  to  him 

County     Dispensary     v.     Mayor     and  in  person,  so  that  he  may  not  sell  at 

Councilmen    of   Brundidge,    130   Ala.  any  place  within  the  judicial  district. 

193,  30  So.  451.  Clark  v.  Riddle,  101  Iowa  270,  70  N. 

27.  Territory  of  Oklahoma  v.  City  W.  207. 

of  Oklahoma,   19  Okla.   149,  92  Pac.  30.  Northern  Pac.  R.  Co.  v.  Wha- 

144.  len,  149  U.  S.   157,   13  Sup.  Ct.  822, 

28.  Clark  v.  Riddle,  101  Iowa  270,  37  L.  Ed.  686. 

70  N.  VY.  207.  31#  Eegg  v.  Anderson,  116  Ga.  401, 

29.  State  v.  Frahm,  109  Iowa  101,  42  S.  E.  720. 


§§    <ill>,  <>17]  INJUNCTION    AND    ABATIMI  667 

the  question  as  to  the  persons  who  made  sales  of  intoxicating  liquors 
in  themselves  unlawful.82 

§  616.  Injunctions — instances. 

A  druggisl  who  sells  liquor  without  requiring  the  affidavit  of 
the  applicant  as  provided  by  statute  may  be  enjoined.38  And  a 
liquor  dealer  may  be  enjoined  from  conducting  the  business  where 
he  has  violated  the  law  by  having  more  entrances  than  the  law 
permits,  even  though  the  additional  entrance  may  be  only  for  his 
convenience  and  that  of  his  employee.34  And  the  manufacture  and 
sale  of  intoxicating  liquors  within  a  state  without  the  permit 
required  therefor  by  statute,  though  for  the  purpose  of  export 
only,  will  render  the  manufactory  a  nuisance.35  Again,  where  a 
club  is  formed  and  conducted  for  the  purpose  of  evading  the  liquor 
law  of  the  state,  it  is  to  be  regarded  as  a  common  and  public 
nuisance  which  may  be  abated  as  such.36 

§  617.  Temporary  injunction. 

The  court  may  in  its  discretion  upon  a  proper  showing  of  facts, 
grant  a  temporary  injunction  pending  a  further  hearing.  So  a 
temporary  injunction  may  be  granted  before  the  defendant  has 
been  convicted  criminally  for  keeping  the  nuisance  unless  con- 
viction is  by  statute  a  prerequisite  to  relief.37  Where  such  an 
injunction  has  been  granted  it  has  been  decided  that  the  state  must 
promptly  prove  its  case  or,  on  answer  filed,  plainly  and  positively 
denying  all  the  material  allegations  of  the  bill,  a  motion  to  dissolve 
must  be  sustained,  unless  good  and  sufficient  cause  is  shown  for 
further  delay. 38    In  Iowa  it  is  decided  that  where  defendant  at  the 

M.  Tron    v.    Lewis,    31    Ind.    App.  598,  43  X.  W.  606. 

178.  66  N.  E.  400.  86-  Cohen   t.   Kin?  Knob  Club.   55 

33.  State  v.  Davis,  44  Kan.  60,  24  W.  Va.  108,  40  S.  E.  799. 

Pae.  73.  37.  Littleton  v.  Fritz,  65  Iowa  488, 

84.  State  v.  Gifford,  111  Iowa  648,  22  N.  W.  041.  54  Am.  Rep.  10. 

82  X.  W.  1034.  88.  State    V.    Keyman,    48    W.    Va. 

35.  Craig  v.  Werthmueller,  78  Iowa  307,  37  S.  E.  591. 


668  INJUNCTION    AND    ABATEMENT.  [§§   618,619 

hearing,  elects  to  take  testimony  by  depositions,  thus  necessitating 
a  continuance,  a  temporary  injunction  does  not  issue  as  a  matter 
of  right.39  In  Kansas,  where  in  a  suit  to  suppress  a  liquor  nui- 
sance the  state  applies  to  a  court  or  a  judge  for  a  temporary  in- 
junction at  the  commencement  of  the  suit  no  notice  to  the  defend- 
ant is  necessary.40 

§  618.  Right  of  individual — private  nuisance. 

The  fact  that  a  nuisance  is  a  public  one  does  not  prevent  it  from 
also  being  a  private  one  which  will  entitle  an  individual,  who 
sustains  some  peculiar  damage  different  from  that  sustained  by 
the  public  in  general,  to  maintain  an  action  to  enjoin  it.  Thus  a 
beer  garden  in  the  vicinity  of  a  person's  residence  may  be  of 
such  a  character  where  large  crowds  congregate  at  all  hours  of  the 
day  and  night,  and  many  persons  become  intoxicated  and  indulge 
in  loud,  profane  and  obscene  language,  thereby  depriving  such 
person  and  his  family  of  their  sleep  and  keeping  them  in  constant 
fear  of  injury.41  And  a  suit  for  damages  lies,  as  for  an  actionable 
nuisance,  at  the  instance  of  nearby  property  owners,  against  a 
saloon  established  in  a  residential  locality,  including  buildings 
devoted  to  religious  and  educational  purposes.42 

§  619.  Right  to  a  second  injunction. 

A  decree  for  an  injunction  and  abatement  of  a  nuisance  ob- 
tained by  one  citizen  of  a  county  although  not  enforced,  is  a  bar  to 
a  second  suit  for  the  same  purpose  by  another  citizen  for  the  abate- 
ment of  the  same  nuisance  in  the  absence  of  a  showing  that  the 
former  decree  was  obtained  by  collusion,  with  the  intent  to  use 


39.  Powers   v.    Winters,    106    Iowa  questions  of  fact  are  determined. 
751,  77  N.  W.  509.  41.  Kissel  v.  Lewis,  156  Ind.  233, 

40.  State  v.   Jepson,   76   Kan.   644,  59  N.  E.  478. 

92  Pac.   600,  holding  that  in   such   a  42.  Haggart    v.    Stehlin,    137    Ind. 

case  the  court  has  the  same  judicial  43,  29  N.  E.  1073,  22  L.  R.  A.  577. 
discretion     that     exists     when     other 


§§620,621]  INUNCTION    AND    ABATEMENT.  669 

it  to  defeal  the  purpose  of  the  law.43  Where  an  injunction  was, 
however,  fraudulently  obtained  for  the  purpose  of  shielding  the 
licpior  seller  it  constitutes  no  reason  for  refusing  a  subsequent  in- 
junction, proceedings  for  which  are  brought  in  good  faith.44  And 
where  a  second  petition  describes  a  place  as  on  the  same  street  but 
by  a  different  number,  and  it  is  claimed  that  they  are  identical, 
such  claim  will  not  be  sustained,  the  petitions  describing  different 
places  and  the  evidence  failing  to  establish  their  identity.4 ' 

§  620.  Who  may  be  enjoined. 

Ordinarily  the  injunction  is  granted  against  the  one  guilty  of 
keeping  or  maintaining  the  nuisance.  Where  the  injunction  is 
against  the  keeper  of  a  nuisance  who  occupies  a  part  of  a  building, 
it  should  only  be  against  such  part  as  is  in  his  occupancy  or  under 
his  control.40  A  mortgagee  of  the  premises  should  not  be  enjoined 
without  allegation  and  proof  of  a  right  of  possession  or  control.47 
But  a  non-resident  assignee  in  bankruptcy  holding  the  title  in  fee 
to  the  premises  may  under  the  Iowa  Code  be  served  with  notice 
of  such  proceedings  by  publication.48 

§  621.  Injunction  against  owner  of  building — when  granted. 

By  statute  in  some  states  the  owner  of  the  building  in  which 
such  a  nuisance  is  maintained  is  under  certain  circumstances 
deemed  guilty  of  aiding  in  its  maintenance.49     So  the  owner  of 

*:•••  Dickinson  v.  Eichorn,  78  Iowa  is  maintained  ahould  be  made  parti  9 

710.    4.'5    X.    \Y.    620.      See   Steyer   v.  to  a  proceeding  to  obtain  an  injunc- 

McCauley,   102   Iowa    105.  71   N.   W.  tion  against   its  countinuance.     Den- 

194,   distinguishing  Carter  v.  Steyer,  mead   v.    Parker    (Iowa   S.   C.    1010). 

0::  Iowa  533,  61   N.  \V.  956.  124  X.  W.   7S0. 

>«•  Cameron    v.    Tucker,    104    Iowa  »7.  Stale  v.  Massey,  72  Vt.  210,  47 

211.  7:*  X.  W.  001.  Atl.  834. 

US.  Farley  v.  Hollenfeltz,  79  Iowa  48.  Radford   v.   Thornell,   81   Iowa 

126,  14  X.  W.  243.  700,  45  X.  \Y.  890. 

J<J.  State  v.  Massey,  72  Vt.  210.  47  In   Vermont   it    is  decided  that  the 

Atl.  834.  liability  of  a   landlord  fur  a  nuisance 

All  interested  in  the  land  on  which  maintained  by  his  tenant  stands  un- 
it  is   alleged   that    a   liquor   nuisance  der  the  statute  as  it  did  at   common 


070  INJUNCTION    AND    ABATEMENT.  [§   022 

premises  who  knowingly  permits  them  to  be  so  used  as  to  con- 
stitute the  place  a  nuisance  within  the  operation  of  the  statute 
may  be  enjoined,  as  well  as  the  tenant,  from  so  maintaining  such 
place.50  In  this  connection  the  phrase  "  knowingly  permits  "  in 
such  a  statute  is  held  to  imply  consent  as  well  as  knowledge  and  has 
been  construed  as  meaning  that  to  bring  an  owner  within  its  provi- 
sion he  must  not  only  have  had  knowledge,  but  must  also  have 
consented  to  or  permitted  such  use  of  his  premises.51  Where  it  is 
sought  to  enjoin  an  owner,  evidence  that  he  lived  for  several  years 
over  that  part  long  occupied  as  a  saloon,  and  had  a  place  of  busi- 
ness in  plain  view  of  the  rear  entrance  is  competent  to  show 
knowledge  of  such  use.52  And  knowledge  on  the  part  of  the  land- 
lord which  will  justify  a  decree  against  him  may  be  sufficiently 
shown  by  evidence  of  a  failure  to  terminate  the  lease  for  several 
weeks  after  a  plea  of  guilty  by  the  tenant  to  the  making  of  illegal 
sales  thereon.53  Again,  the  fact  that  the  lease  contains  a  prohibi- 
tion against  the  carrying  on  of  any  unlawful  business  on  the  leased 
premises  will  not  prevent  a  decree  against  the  owner,  it  appearing 
from  the  evidence  in  the  case  that  he  must  have  had  knowledge  that 
such  a  business  was  being  conducted  there.54  And  in  a  proceeding 
to  enjoin  a  landlord,  it  is  no  defense  thereto  that  the  county  could 
have  prevented  the  continuance  of  the  nuisance  by  enforcing  the 
judgment  on  the  plea  of  guilty  by  the  tenant.55 

§  622.  Injunction  against  owner  of  building — when  not  granted. 

Where  the  evidence  simply  shows  that  a  person  was  the  owner  of 


law    and    that    unless    knowledge    or  52.  State  v.  Collins,  68  N.  H.  299, 

ground  of  knowledge  on   his  part  is  44  Atl.  495. 

alleged   and   proved,   he  is  not   liahle  53.  State    v.     Williams,    90    Iowa 

to  an  injunction.    State  v.  Massey,  72  513,  58  N.  W.  904. 

Vt.  210,  47  Atl.  834.  54.  Littleton    v.    Harris,    73    Iowa 

50.  State  ex  rel.     Attorney-general  167,  34  N.  W.  800. 

v.  New  Charleston  Hotel  Co.,  80  S.  C.  55.  State  v.  Williams,  90  Iowa  513, 

120,  61  S.  E.  207.  58  N.  W.  904. 

51.  State  v.  Stafford,  67  Me.  125. 


§   023]  INJUNCTION    AND    ABATEMENT.  ,;7l 

the  building  but  does  not  show  thai  he  participated  in  the  main- 
tenance of  the  alleged  nuisance  or  knowingly  allowed  his  building 
to  be  used  as  a  resort  where  liquor  was  sold  there  is  not  a  prima 
facie  showing  that  he  permitted  his  property  to  be  used  for  the 
maintenance  of  a  public  nuisance.50  So  injunction  proceedings  for 
the  abatement  of  a  nuisance  will  not  lie  against  an  owner  of  real 
estate  on  whose  land  a  trespasser  has,  without  the  knowledge  or 
consent  of  the  owner,  erected  a  building,  and  used  the  same  for  the 
illegal  sale  of  intoxicating  liquors,  and  which  he  was  compelled  To 
remove  as  soon  as  the  owner  acquired  knowledge  thereof.57  And 
where  an  owner  leased  his  property  for  a  lawful  purpose  and  has 
no  knowledge  that  it  is  used  for  an  unlawful  sale  of  liquors  so  as 
to  render  it  a  nuisance,  and  he  takes  prompt  measures  to  obtain 
the  removal  of  the  lessee  upon  learning  such  fact,  an  injunction 
against  him  is  properly  dissolved,  if  granted.58  Again,  a  prelimi- 
nary injunction  against  a  lessor  and  lessee  of  a  building  is  properly 
refused  where  it  appears  that  prior  to  the  beginning  of  the  action 
the  lessor  warned  the  lessee  to  desist  from  the  sale  of  liquors  on 
the  premises  and  that  he  did  in  good  faith  desist,  and  there  was 
no  evidence  to  show  any  subsequent  sales.59 

§  623.  Covenant  not  to  sell  liquors — enjoining  breach  of. 

Injunction  is  the  proper  remedy  to  restrain  the  breach  of  a  con- 
no.  State  v.  Union  Social  Club,  82  Merryfield  v.  Swift,  103  Iowa  167,  72 
S.  C.  142,  63  S.  E.  545.     See  Morgan  N.  W.  444. 
\.   Koestner,  83  Iowa  134,  49  N.  W.  57.  State  v.  Lawler,  85  low. 
80.  52  N.  W.  490 

A  decree  ordering  that  a  building  58.  Morgan  v.  Koestner,  83  Iowa 
be  closed,  and  that  the  owner  should  134,  49  N.  W.  80;  Drake  v.  Kings- 
pay  the  costs  and  attorney's  fees  in-  baker,  72  Iowa  441,  34  N.  \V.  199, 
curred  in  proceedings  to  enjoin  the  distinguishing  Martin  v.  Blattner,  68 
continuance  of  the  nuisance  was  held  Iowa  286,  25  X.  W.  131,  27  X.  \Y 
to  be  unauthorized  where  the  sale  of  244;  Judge  v.  Krilis,  71  Iowa  183, 
liquors    was    made    by    a    trespasser  .'i2  X*.  W.  324. 

without    the    owner's    knowledge    or  f>*>.  Shear    v.    Brinkman,    72    Iowa 

consent,    and    the   sale   of   liquor    had  698,  34  X.  W.  483. 
ceased   before   the   petition   was   filed. 


672  INJUNCTION    AND    ABATEMENT.  [§    623 

tract  not  to  sell  intoxicating  liquors  upon  the  granted  premises  or 
not  to  sell  them  in  less  than  a  certain  quantity,  such  a  restriction  is 
not  a  general  but  only  a  limited  and  reasonable  restraint  of  trade. 
It  may  also  be  a  covenant  running  with  the  land  and  therefore 
effectual  as  against  an  assignee  of  the  vendee  having  notice  of  it.60 
So  where  a  deed  contains  a  restrictive  clause  providing  that  the 
pr.emises  conveyed  shall  not  be  used  by  the  grantee  for  saloon  pur- 
poses so  long  as  adjoining  property  is  owned  by  the  grantor,  equity 
will  enjoin  the  grantee  or  those  holding  as  subsequent  grantees  from 
a  breach  thereof.61  And  it  has  been  decided  that  in  an  action  by 
the  grantors  of  certain  premises  to  restrain  a  grantee  from  using 
it  for  a  saloon,  or  for  the  sale  of  intoxicating  liquor,  under  a  parol 
agreement  to  that  effect,  an  injunction  will  lie  on  account  of  a 
lease  made  on  condition  that  the  lessee  secure  a  license,  though  the 
lessee  after  he  had  taken  possession  and  the  license  had  been 
granted  never  called  or  paid  for  the  license,  nor  paid  rent  to  the 
lessor.62  The  grantor  cannot,  however,  enjoin  the  sale  of  intoxi- 
cants on  a  lot  which  he  conveyed  on  the  express  condition  that  they 
should  never  be  sold  thereon,  where  he  subsequently  conveyed  the 
adjoining  lot  without  such  restriction,  and  intoxicants  are  sold  on 
it,  and  it  is  held  that  it  is  no  answer  that  the  omission  of  the 
restriction  from  the  subsequent  conveyance  was  a  mistake,  if  he 
took  no  steps  to  correct  it.63 


60.  Sutton  v.  Head,  86  Ky.  156,  5  disposing  of  his  property,  to  prevent 
S.  W.  410.  See  also  Turner  v.  John-  such  a  use  by  the  grantee  as  might 
son.  7  Dana  (Ky. )  435;  Reilly  v.  diminish  the  value  of  remaining  land, 
Otto,  108  Mich.  330,  66  N.  W.  228.  or    impair    its    eligibility    for    other 

61.  Star  Brewery  Co.  v.  Primas,  uses.  Watrous  v.  Allen,  57  Mich. 
163  111.  652,  45  N.  E.  145.  362;    Smith   v.   Barrie,   56  Mich.    314. 

62.  Hall  v.  Solomon,  61  Conn.  476,  But  is  there  no  mutuality  in  such 
23  Atl.  876.  agreement?      It   cannot   be   said   that 

63.  Jenks  v.  Pawlowski,  98  Mich.  a  grantor  has  a  right  afterwards  to 
110.  56  N.  W.  1105.  The  court  said,  sell  an  adjoining  lot  without  re- 
per  McGrath,  J.:  "  Restrictions  of  striction,  and  thereby  diminish  the 
this  class  are  sustained  upon  the  value  of  his  former  grantee's  prop- 
theory  that  a  party  has  the  right,  in  erty,    and    still   be   allowed    to    insist 


§  G24]  INJUNCTION    AND    ABATEMENT.  i;;:; 

§  1524.  Who  may  institute  proceedings. 

Where  the  statute  designates  who  may  maintain  a  proceeding 
to  abate  a  liquor  nuisance  it  can  only  be  maintained  by  the  persons 
designated.64     Under  a  statute  conferring  3uch  a  righl  upon  any 

citizen  of  the  county,  it  has  been  decided  thai  any  male  person  over 
twenty-one  years  of  age,  who  has  his  presenl  home  and  domicile  in 
any  county,  although  it  may  be  for  a  temporary  purpose,  is  a 
citizen  of  that  comity,  provided  he  has  a  fixed  intention  of  re- 
maining there  for  an  indefinite  period  of  time,  and  has  no  home, 
domicile  or  right  of  citizen-hip  elsewhere.60  And  where  the  right 
is  conferred  upon  any  citizen  his  motive  in  bringing  the  action  has 
been  held  immaterial  except  as  it  may  bear  upon  his  veracity  and 
credibility,  the  question  being  simply  whether  he  is  qualified  by 
statute  to  bring  the  action  and  whether  the  defendant  has  violated 
the  law.60  And  in  such  a  case  the  right  to  prosecute  it  is  held  nor 
to  cease  by  the  citizen's  removal  from  the  county.67  Where  the 
county  attorney  is  authorized  to  prosecute  the  action  in  the  name 
of  the  state  while  there  is  no  necessity  for  adding  the  name  of  any 
person  as  relator,  the  state  being  the  real  party  in  interest,  the  ad- 
dition of  the  name  of  the  county  attorney  as  relator  is  not  preju- 
dicial to  a  defendant  and  will  not  render  the  petition  for  injunction 
demurrable.68  In  South  Dakota  it  is  decided  that  where  by  statute 
a  place  or  house  where  intoxicating  liquors  are  sold  at  retail  with- 

upon      the      restriction.        Chippewa  i-  not  put  in  issue  by  a  general  denial 

Lumber  Co.  v.  Tremper,  75  Mich.  36,  and  not  being  put   in   issue  nerd  not 

42  X.  \V.  532."  be  proved.     Shear  v.  Green,  7:?   Iowa 

64.  Applegate  v.  Winebrenner,  66  688,  .'5(1  X.  W.  G42.  citing  Littleton  v. 
Iowa,  67,  23  X.  W.  267.  Fritz.   65   Iowa    188,    22    X.    W.   641; 

65.  Fuller  v.  McDonnell,  Tn  Iowa  Littleton  v.  Hani-.  73  Iowa  167,  34 
220,  39  X.  W.  277,  holding  that  a  X.  W.  son.  and  followed  in  Goetz  v. 
methodist  clergyman  holding  under  Stutsman,  7::  [owa  691,  36  X-  YV.  644. 
appointment  by  a  bishop  of  the  66.  n,. miner  v.  Bonson,  139  [owa 
church  is  a  citizen  thougb  subjeel   to  -Jlo.   117  X.  \V.     :2 ."> 7 . 

removal  at  any  time  by  order  of  the  *>~-  Judge    v.    Kahl.    74    Iowa    486, 

bishop.  38   V  W.  173 

An   allegation   that   the   proceeding  68.   Pottenger    v.    state.    .-,  |    Kan. 

is  brought  by  a  citizen  of  the  county  312,  38  Pac.  278 


(374  INJUNCTION    AXD    ABATEMENT.  [§   625 

out  a  license,  is  declared  to  be  a  nuisance,  a  remedy  by  injunction 
exists  in  favor  of  the  town  where  such  nuisance  is  maintained.69 
In  Georgia  it  is  decided  that  the  illegal  sale  may  be  abated  by  a 
court  of  equity  upon  information  filed  in  behalf  of  the  public  by  the 
solicitor  general  of  the  judicial  circuit  wherein  such  sale  is  carried 
on.70  The  action  being  brought  for  the  public  benefit  and  the  right 
to  intervene  as  given  by  statute  being  based  on  a  private  interest 
where  an  action  has  been  begun  by  a  citizen,  another  citizen  has  no 
right  to  intervene  and  join  the  plaintiff  in  the  prosecution.71 

§  625.  Petition — form  and  sufficiency  of. 

The  petition  should  allege  facts  showing  that  the  place  com- 
plained of  comes  within  the  operation  of  the  statute.72  So  where  by 
statute  knowledge  by  the  owner  is  essential,  if  the  owner  is  joined 
there  should  be  an  allegation  of  knowledge.73  And  where  the 
maintenance  of  a  liquor  nuisance  may  be  by  sales  in  one  of  several 
ways  by  one  authorized  to  keep  and  sell  liquors  the  petition  should 
specify  the  illegal  sales  complained  of.74  Again,  where  the  statute 
requires  that  facts  should  be  stated,  the  allegations  of  a  petition, 
unless  stated  upon  the  petitioner's  personal  knowledge  and  as  facts 
so  that  the  court  can  weigh  their  value  do  not  comply  with  the 
statute.75  Where  a  petition  for  the  abatement  of  a  liquor  nuisance 
contains  a  name  of  one  who  is  not  a  legal  voter  as  required  by 

Right  of  a  solicitor  of  a  county  to  73.  State    v.    Massey,    72    Vt.    210, 

appear   as    a    prosecutor    in    place   of  47  Atl.  834. 

original    petitioner    asking    leave    to  74.  Abrams  v.  Sandholm,  119  Iowa 

withdraw,  see  State  v.  Lynch,  72  N.  583,  93  N.  W.  563,  so  holding  in  the 

H.   185,  55  Atl.   553.  case  of  illegal  sales  by  a  pharmacist 

'!!>•  Town  of  Britton  v.  Guy,  17  S.  and    deciding    that    a    failure    to    so 

D.  588,  07  N.  W.  1045.  specify  will  render  the  pleading  sub- 

70.  Walker    v.    McNelly,    121    Ga.       ->oct    to    a    motion    for    more    sPecific 
114    iQ  c   -p    "]Q  statement,   when    properly   presented. 

Compare  Jelnick  v.  State    (Tex.   Civ. 
^  71.  Conley  v.  Zerber,  74  Iowa,  699,       App    ig08)j  ng  g    w    gQg 

39  V  Wl  113,  75.  Matter  of  Wheaton  v.  Slattery, 

72.  state  v.  Marston,  64  N.  H.  603,       96  App.  Div.    (N    y.)    102,  88  N.  Y. 
15  Atl.  222.  Supp.   1074.     Per  Chase,  J. 


§§626,627]  INJUNCTION    AND    ABATEMENT.  675 

statute,   it   bas  been  held  proper  to  amend  it  by  substituting  the 
name  of  one  who  is.76 

§  626.  Answer. 

An  answer  filed  several  days  after  the  petition  which  simply 
denies  that  the  defendant  at  the  time  of  answering  is  main- 
taining a  nuisance  is  had  on  demurrer.77  And  an  allegation 
in  an  answer  that  the  injunction  case  is  brought  in  bad  faith  and 
to  annoy  defendant  needs  no  reply,  it  is  no  defense  and  should  be 
stricken  out  on  motion.  The  statute  confers  the  right  to  bring 
such  a  proceeding,  and  upon  proof  of  the  necessary  facts  it  is  the 
duty  of  the  court  to  abate  the  nuisance.  The  question  of  the  motive 
of  the  individual  is  immaterial  for  though  the  right  is  conferred 
upon  him  the  action  is  for  the  benefit  of  the  general  public.78 

§  627.  Evidence. 

Where  a  petition  to  enjoin  the  illegal  sale  of  liquor  charges  a 
continuing  offense  evidence  of  sales  made  after  the  commencement 
of  the  action  is  competent.79  And  payment  of  the  United  States 
special  tax  as  a  liquor  seller  is  sufficient  evidence  to  warrant  a 
finding  that  the  person  paying  the  same  is  a  common  seller  and 
the  premises  kept  by  him  a  common  nuisance.80  And  the  petition 
being  a  civil  proceeding,  the  issues  are  to  be  determined  upon  the 
balance  of  probabilities,  and  a  defendant  who  does  not  testify  in 

76.  State  v.  Collins,  G8  N.  H.  46.  44  77.  Tibbetts    v.    Burster.    76    [owa 

Atl.      495.       The     court      declared:  170,  40   X.   W.   7<>7     following   Ilalf- 

"  There   is   nothing   in   the   nature  ot  man   v.   Spreen,   75    [owa   309,   39   X. 

this  action   (State  v.  Saunders,  66  X.  W.   512. 

H.   39.   25   Atl.   5SS:    1  :.i ii. diir's   Peti-  78.  McQuade    v.    Collins,    93    Iowa 

yon,    66    X.    II.    L72,    20    Atl.    930)  22.  61  X.  W.  213.     Sufficiency  of  an- 

that  excepts  it   from  the  operation  of  swer,  see  (lark  v.  Riddle,  101   Iowa 

the    genera]     rule,     authorizing    the  270,  To  X.  \V.  207. 

court    to    allow    amendments    to    be  7;>-  Hall    v.   Coffin,    10S   Iowa    466, 

mad.'  in  civil  actions  by  adding  new  79    X.   W.   274,   citing  State  v.   Wil- 

parties  or  substituting  new  ones  for  liams,  90  [owa  513,  58  X.  \V.  904. 

original    parties,    if    justice    requires  80«  state  v.  Lincoln,  7:?  Vt.  221,  51 

the     change     to     be     made."       Per  Atl.  9. 
Chase,  J. 


,;;<;  INJUNCTION    AND    ABATEMENT.  [§    G28 

his  own  behalf  is  held  not  to  be  protected  from  adverse  comment 
and  inference.81  Where  the  petition  contains  the  allegations  re- 
quired and  no  answers  are  filed  such  allegations  under  the  Iowa 
Code  have  been  held  to  stand  admitted  by  operation  of  law  and 
no  evidence  is  necessary  to  entitle  the  plaintiffs  to  the  relief  de- 
manded.82 

§  628.  Defenses — generally. 

The  knowledge  of  an  agent  of  the  existence  of  a  liquor  nuisance 
is  rented  premises  is  imputable  to  the  owner.83  And  there  is  no 
substantial  variance  between  an  allegation  that  defendant  knew 
and  consented  to  the  existence  of  a  liquor  nuisance  and  proof  that 
his  agent  knew  or  had  reason  to  know  of  it.84  So  though  a  defend- 
ant, a  druggist,  may  claim  that  the  sales  were  made  by  a  clerk 
without  his  knowledge,  yet  a  decree  for  an  injunction  is  proper 
where  the  evidence  shows  that  he  must  as  a  reasonably  intelligent 
man  have  known  of  such  sales  by  his  clerk.85  A  liquor  dealer's 
violation  of  law  through  mistake  of  law  is  also  no  excuse  in  a  pro- 
ceeding for  an  injunction.86  And  in  an  action  to  enjoin  a  nuisance 
in  the  sale  of  liquors  by  a  pharmacist  it  is  no  response  to  assert 


81.  State  v.  Collins,  68  N.  H.  299,  cist  to  obtain  an  injunction  against 
44  Atl.  495.  the  continuance  of  his  business  as  a 

82.  Bloomer  v.  Glendy,  70  Iowa  liquor  nuisance  the  fact  that  the  un- 
7 r. 7 ,  30  N.  YV.  48G.  The  court  said:  lawful  sales  complained  of  were  not 
"  The  material  facts  upon  which  made  by  him  but  by  others  in  his 
plaintiff's  right  of  recovery  depended  place  of  business  is  immaterial. 
being  admitted,  or,  what  amounts  to  Strowert  v.  Johnson  (Iowa  1909), 
the  same  thing,  being  uncontroverted,  123  N.  W.  336. 

it   was  not  necessary  for  them  to  in-  86.  State     v.     Gifford,      111     Iowa 

troduce  any  evidence  whatever."     Per  648,  82  N.  W.  1034. 

Reed,   J.  A  plea  by  a  defendant  that  he  did 

83.  State  v.  Collins,  74  Vt.  43,  52  not  know  that  the  liquors  sold  by 
Atl.  09.  him   were   intoxicating   is   unavailing 

84.  State  v.  Collins,  74  Vt.  43,  52  in  a  proceeding  against  him  for 
Ael.  Oil.  violation    of    an    injunction    against 

85.  Elwood  v.  Price,  75  Iowa  228,  the  sale  of  intoxicating  liquors. 
39  N.  W.  281.  State  v.  Ilgner  &   Co.    (Kans.   S.  C. 

In  a  proceeding  against  a  pharma-  1909),    105    Pac.    14. 


§  (jog]  [NJUNCTION    AND    ABATEMENT.  677 

that  he  was  acting  in  good  faith  or  ihat  the  party  responsible  for 
the  commencement  of  the  proceeding  acted  from  questionable 
motives.87  Again  intent  is  not  an  element  of  the  offense  involved 
in  a  violation  of  the  liquor  law,  and  therefore  the  advice  of  police 
authorities  that  sales  may  be  lawfully  made  on  a  prohibited  day 
is  not  a  defense  to  a  prosecution  for  a  violation  of  the  law  in  that 
regard.88  But  the  fact  that  a  bond  given  by  a  firm  of  liquor 
dealers,  is  signed  by  one  of  the  members  as  surety,  renders  it  de- 
fective but  does  not  constitute  a  ground  for  enjoining  the  business 
as  a  nuisance,  the  bond  being  amendable  by  statute.89 

§  629.  Effect  of  discontinuance  of  nuisance. 

The  nuisance  must  be  one  which  exists  at  the  time  of  filing  the 
petition.90  And  where  a  nuisance  complained  of  has  ceased  be- 
fore proceedings  to  enjoin  it  are  commenced  an  injunction  is  prop- 
erly refused.91  But  where  the  court  is  satisfied  that  the  discon- 
tinuance was  not  in  good  faith  it  may  in  its  discretion  grant  an 
injunction.92  And  where  it  appears  that  sales  of  liquor  were  fre- 
quently made  by  a  druggist  in  violation  of  the  law  prior  to  the 
bringing  of  an  action  to  enjoin  the  same,  an  injunction  should  not 
be  refused  on  the  ground  that  no  illegal  sales  have  been  made 
since  the  action  was  commenced  and  probably  will  not  be  in  the 
future.93  And  in  a  recent  case  in  Iowa  it  is  decided  that  after 
the  granting  of  a  temperary  injunction  restraining  the  illegal  sale 
of  liquor,  a  defendant  who  has  rendered  a  final  hearing  necessary 
cannot  procure  a  dismissal  of  the  action  on  the  eve  of  trial  by 
showing  that  he  has  abandoned  the  business.94     But  an  injunction 

8T.  Rizer  v.  Tapper,  133  Iowa  628,  J>--  Judge   v.   Kribs,   71    Iowa   1S3, 

110  N.  W.  1038.  32  N.  W.  324. 

88.  Eammond  v.  King,  137  Iowa  93.  Long  v.  .Toder,  139  Iowa  471. 
548.  Ill   X.  W.   1062.  116  X.  W.   1063. 

89.  Clark  v.  Riddle,  101  Iowa  270,  '•>*•  Drummond  v.  Richland  City 
70  X.  W.  2()7.  Drug  Co.,   133   Iowa  266,   110  X.  W. 

!><>.   State  v.  Saunders,  66  X.  II.  30.       471.     The  eourt  said:  "  Until  the  final 

91.  State    v.    Striekford.    70    X.    II.       trial  was  had  it   could  not  be  known 

•207,  47  Atl.  262.  judicially  whether  the  defendant  had 


C7S  INJUNCTION    AND    ABATEMENT.  [§    G30 

to  restrain  a  person  from  making  unlawful  sales  was  held  to  have 
been  properly  refused  where  the  evidence  showed  conclusively  that 
such  person  had  in  good  faith  abandoned  the  business  long  before 
the  trial,  had  surrendered  his  permit,  and  had  sold  his  interest 
in  the  business  and  in  the  premises  in  which  it  was  carried  on,  the 
court  declaring  that  there  was  then  no  occasion  to  issue  an  in- 
junction against  him.95 

§  630.  Judgment  or  decree. 

The  order  is  to  the  person  convicted  which  may  be  enforced,  if 
the  nuisance  be  continued,  by  attachment  for  contempt  of  court.96 
In  case  of  an  injunction  restraining  the  illegal  sale  of  intoxicating 
liquors  by  a  firm  it  continues  to  be  effectual  after  the  dissolution 
of  the  firm.97  Where  a  statute  provides  that  upon  proof  that  a 
place  is  a  nuisance  an  order  shall  be  entered  closing  the  building 
against  its  use  for  the  purpose  prohibited  and  so  keeping  it  for 
one  year  but  if  the  owner  give  bond  to  abate  the  nuisance  the 
court  may  allow  him  to  open  it  for  other  purposes  it  is  construed 
as  requiring  the  place  to  be  effectually  closed  unless  the  bond  is 
given  and  a  decree  that  the  place  be  closed  against  the  purpose 
prohibited  "  but  not  as  against  any  other  use  "  is  erroneous.9S     A 

abandoned   the  business   or   not,   and  held  that  the  court  properly  entered 

having   rendered   a   final   trial   neces-  a   decree   of   final    injunction   and   as 

sary,    it    was    too    late    for    him    to  an   incident,   taxed   an   attorney's   fee 

escape    the    usual     consequences     by  to  him.     Sawyer  v.   Botti    (Iowa   S. 

showing  abandonment  of  the  business  C.  1910),  124  N.  W.  787. 
after  the  granting  of  the  preliminary  95.  Patterson    v.    Nicol,    115    Iowa 

injunction    and    before    trial."      per  283,   88   N.   W.    323,   citing  Judge  v. 

McClain,  J.  Kribs,   71   Iowa   183,   32   N.   W.   324; 

Where    a     person     ceased    to     sell  Shear  v.  Brinkman,  72  Iowa  698,  34 

Justus    beer    after    a    proceeding   was  N.  W.  483. 

commenced  to  restrain   such   sale  by  !><;-  Schultz   v.    State,    32    Ohio    St. 

him    but    he    litigated    the    question  270,  citing  Miller  v.  State,  3  Ohio  St. 

whether  he  had  a  right  to  sell  it  and  475. 

if  the  court  had  entered  no  decree  of  '•>'-  Carter  v.  Bartel,  110  Iowa  211, 

perpetual  injunction  againsl    him,  he  81  N.  W.  402. 

could    have    resu       1   the   sale  so   far  98.  McCoy  v.  Clark,  109  Iowa  464, 

as  the  action  was  concerned,  it  was  80  N.  W.  538. 


§§  631,632]  EXJUNCTION    AND    ABATEMENT.  679 

decree  enjoining  the  sale  on  "  part  of  "  a  designated  lol  is  nol  void 
for  uncertainty  as  tin-  mandate  would  he  violated  by  a  sale  on  any 
part  of  the  lot."  A  judgmenl  enjoining  a  liquor  auisance  will  not 
be  disturbed  if  there  is  any  evidence  to  sustain  it  though  an  appar- 
ent preponderance  of  the  testimony  may  be  againsl  the  finding  and 
judgment.1  In  Iowa  a  private  citizen  may  enforce  obedience  to 
a  decree  restraining  the  illegal  sale  of  liquor  and  may  employ 
such  counsel  as  he  chooses  even  though  residing  in  another  county. - 

§  631.  Modifying  decree. 

While  a  court  of  equity  has  power  to  modify  a  decree  yet  where 
it  appears  that  a  decree  was  properly  granted  enjoining  the  sale 
of  liquors  by  defendant  the  mere  fact  that  there  has  been  a  change 
in  the  liquor  law  since  the  decree  was  rendered,  which  permits  the 
sale  of  liquors  under  certain  conditions  is  not  of  itself  a  sufficient 
reason  for  a  court  of  equity  to  exercise  this  power;  it  being  de- 
clared in  such  a  case  that  if  the  law  itself  modifies  the  decree  no 
decree  is  necessary  to  establish  that  fact  and  that  if  it  does  not 
modify  the  court  has  no  power  to  do  so.3  Where  plaintiff  was 
served  with  notice  of  an  application  in  vacation  time  to  modify  an 
order  of  injunction,  and  appeared  and  resisted,  he  thereby  con- 
sented to  the  authority  of  the  court  to  modify  the  order  in  vacation, 
and  it  is  held  that  he  can  not  afterwards  raise  that  question.4 

§  632.  Contempt — proceedings  to  punish  for — nature  of. 

A  court  of  chancery  having  power  to  abate  a  public  nuisance  has 

f>o.  Ver   Straeten    v.    Lewis,  Judge,  A  person  who  has  no  interest 

77    [owa   130,  41    X.  W.   ">04.  in    or    title    to    the    premises    mi 

l«  Siekinger  v.  State,   15  Kan.  414,  which   an  alleged   Liquor   nuisani 

25  Par.  868.  said  to  have  been  maintained  cannot 

-•  Brennan    v.    Roberts,    125    Iowa  be  heard  to  complain  of  thai  portion 

615,  101  X.  W.  460.  of   the   decree   which    establishes   the 

•'t.  Denby  v.  Fie,  106  Iowa  299,  76  judgment   for  costs  as  a   lien  on  the 

X.  W.  702.  premises.    Denmead  v.  Parker  (Iowa 

i.   Landi   v.  Remley,  113  Iowa  555,  S.  C.  1910),  124  N.  W.  780. 
85  X.  W.  783. 


680  INJUNCTION    AND    ABATEMENT.  [§    G32 

authority  to  enjoin  its  commission  and  maintenance  and  conse- 
quently to  punish  for  disobedience  of  its  order.5  The  legislature 
may  also  fix  the  penalty  for  violation  of  injunctions  in  liquor  cases 
and  in  exercising  such  power  does  not  intrench  upon  the  inherent 
power  of  the  courts  to  punish  for  contempt.6  And  a  statute  au- 
thorizing a  judge  in  vacation  to  commit  for  contempt  of  an  in- 
junction issued  under  the  liquor  law  is  not  unconstitutional  on 
the  ground  that  it  authorizes  judgment  by  one  who  is  not  a  court 
within  the  meaning  of  the  constitution.7  In  Texas  a  proceeding 
for  contempt  in  violating  an  injunction  is  criminal  in  its  nature 
and  is  properly  brought  in  the  name  of  the  state  though  the  pro- 
ceeding for  an  injunction  is  brought  in  the  name  of  a  citizen.8 
And  in  Iowa  it  is  decided  that  the  proceeding  to  punish  for  viola- 
tion of  an  injunction  being  quasi  criminal  a  conviction  should 
not  be  sustained  unless  the  proof  of  guilt  is  clear  and  satisfactory, 
but  if  there  is  clear  and  satisfactory  evidence  the  action  of  the 
trial  court  should  not  be  set  aside  merely  because  some  evidence 
has  been  erroneously  received.9  But  proceedings  to  punish  for 
contempt  do  not  come  within  a  code  provision  requiring  the  court 
in  criminal  proceedings  to  fix  a  time  for  pronouncing  judgment, 
which  in  no  case  shall  be  less  than  six  hours  after  verdict.10  And 
a  party  charged  with  contempt  is  not  of  right  entitled  to  a  jury 
trial.11  In  Kansas  it  is  decided  that  it  is  error  for  a  court  or 
judge  in  any  case  to  proceed  against  a  person  for  a  constructive 


5.  State  v.  Murphy,  71  Vt.  127,  41  Court,  120  Iowa  345,  102  N.  W.  115: 

Atl.   1037.  Harlan  v.   Richmond,   108  Iowa   101, 

<-  State   v.   Thomas,   74   Kan.    300,  78  N.  W.  809.* 

80  Pac.  499.  10-  McGlasson  v.  Johnson,  80  Iowa 

7.  McLane    v.    Granger,    74    Iowa  477,  53  N.  W.  207. 

152,  37  X.  W.  123.  11.  State  v.  Thomas,  74  Kan.  300, 

8.  Fisher   v.   Casa    County   District  80  Pac.  499;  State  v.  Durein,  40  Kan. 
Court,  75  Iowa  232,  39  N.  W.  283.  695,  27  Pac.  148;  State  v.  Markuson, 

»•  Russell      v.      Anderson       (Iowa,  5  N.  D.  147,  04  N.  W.  934,  reaffirmed 

Pit)!)),   120   X.   \V.  89.     Per  McClain,  in  State  v.  Markuson,  7  N.  D.  155,  73 

J.,   citing   Wells   v.   Given,    120   Iowa  N.  W. 
340,  102  N.  W.  100 ;  Drady  v.  District 


§§633,634]  INJUNCTION    AND    ABATEMENT.  681 

contempt,  without  an  affidavit  or  information  in  writing,  contain- 
ing a  statement  of  facts  constituting  the  contempt  charged,  being 
filed  in  courl  or  submitted  to  the  judge.12 

§  633.  Contempt — sufficiency  of  information. 

Under  a  statute  requiring  the  information  in  proceedings  to 
punish  for  a  violation  of  such  an  injunction  to  set  out  the  alleged 
facts  constituting  the  violation  an  information  setting  out  the 
issue  of  the  injunction,  defendant's  knowledge  thereof,  and  that 
sundry  times,  since,  defendants  had  sold  and  kept  for  sale  intoxi- 
cating liquors  is  sufficient,  without  naming  the  building  where  the 
sales  were  said  to  have  been  made,  or  the  names  of  the  purchasers, 
such  facts  being  regarded  as  evidential  ones  which  are  unnecessary 
in  an  information.13  An  information  charging  the  violation  of  an 
injunction  need  not  set  out  the  decree.14 

§  634.  Contempt — what  constitutes. 

One  who  was  not  a  party  to  proceedings  in  which  an  injunction 
was  granted  is  not  guilty  of  contempt  of  such  injunction  by  un- 
lawfully selling  liquors  in  the  same  place.15  But  the  owner  of  a 
building  is  held  properly  to  be  in  contempt  for  violation  of  the 
injunction  where  the  evidence  shows  that,  although  he  was  not 
active  in  keeping  the  saloon,  it  was  actively  kept  by  another 
with  the  undoubted  knowledge  and  assent  of  the  owner.1*'  Where 
an  injunction  prohibits  illegal  sales  within  a  certain  district  a 
single  sale  within  such  district  violates  the  injunction  and  the  seller 

12.  i,}    re    Earmer,    Petitioner,    47  14.  Brennan  v.  Roberts,    125    fowa 
Kan.  262,  J7    Pac.   1004,  citing  State      615,  101  N.  W.  460. 

v.    Henthorn,   46    Kan.    613,   26    Pac.  15»  Pearson    v.    District    Court    of 

937  Cass  County,  90  Iowa  756,  57  N.  W. 

13.  McGlasson   v.   Scott,   112   Iowa  871,  following  Buhlman  t.  Humphrey, 
289.  S3  N.  W.  974.  86    Iowa    597,   53   N.   W.   318;    New- 
Sufficiency   of    information    in   pro-  (diner  v.  Tucker.  89  Iowa  4S6,  56  N. 

ceedinp  to   punish   for   contempt,    Bee      W.  409. 

also    Pumphray    v.    Anderson     (Iowa  16.  England    v.   Johnson,   86   Iowa 

1909),  119  N.  W.  528.  751,  53  N.  W.  268. 


GS2  INJUNCTION    AND    ABATEMENT.  [§   635 

is  liable  for  contempt.17  And  an  injunction  against  the  sale  of 
liquors  is  held  in  Iowa  to  be  violated  by  the  sale  of  liquors  in 
original,  unbroken  imported  packages,  and  it  is  decided  that  the 
seller  cannot  escape  the  penalty  on  the  ground  that  he  in  good 
faith  believed  the  sales  were  not  a  violation  of  the  law.18  Again 
proof  of  a  lack  of  a  druggist's  permit  is  not  necessary  to  a  con- 
viction for  contempt  in  violating  an  injunction  where  the  sales 
shown  by  the  evidence  would  have  been  illegal  even  if  the  defend- 
ant had  had  a  druggist's  permit.19  And  evidence  of  an  agreement 
between  the  counsel  and  the  judge  that  the  decree  shall  for  the 
purposes  of  contempt  remain  inoperative  for  a  certain  length  of 
time  is  no  defense  to  proceedings  to  punish  for  contempt  for  a 
violation  during  such  period.20  So  under  such  a  statute  the  fact 
that  the  sheriff  was  orally  advised  by  the  judge  to  close  the  build- 
ing temporarily  does  not  relieve  one  from  liability  for  contempt 
where  he  breaks  into  and  uses  the  building.21 

§  635.  Effect  of  appearance  in  court — contempt. 

Where  defendants  enjoined  were  in  court  by  attorney  when  the 
decree  of  injunction  was  rendered  they,  are  held  to  be  chargeable 
with  knowledge  of  its  contents,  and  the  decree  need  not  be  served 
upon  them  to  render  them  guilty  of  contempt  for  violating  the 
same.22  The  court  said:  "  It  is  insisted,  however,  that  the  injunc- 
tion for  which  the  decree  provided  was  not  in  force,  because  a  writ 
of  injunction  had  not  been  issued  and  served.  But  the  law  does 
not  require  useless  formalities.  The  defendants  enjoined  were  in 
court,  by  attorney,  when  the  decree  was  rendered,  and  are  charge- 
able with  knowledge  of  all  it  contained.     They  had  appeared  in 


17.  Schlosser  v.  Mould  (Iowa).  121  20.  Buck   v.   Powers    (Iowa   1909), 
X.  W.  520.  121  X.  W.  1042. 

18.  Slate  v.  Bowman,  79  Iowa  566,  21.  Lewis  v.  Brennan   (Iowa  1908), 
4  4  \.  W.  813.  117  X.  W.  279. 

i».  State    v.    Plamondon,    75    Kan.  22.  Hawks    v.    Fellows,    108    Iowa 

209,  89  Pac.  23.  133,  78  X.  W.  812. 


§    636]  INJUNCTION    AND    AUATKMKNT.  683 

the  case,  and  resisted  the  demands  of  the  plaintiff,  and  had  no 
rights,  which  the  issuing  of  a  formal  writ  would  have  subserved. 
The  injunction  as  to  them  was  in  force  from  the  time  the  decree 
was  rendered."  23 

§  636.  Conviction  as  prerequisite  to  abatement. 

Under  the  statute  in  some  states  upon  the  conviction  of  a  per- 
son for  maintaining  a  liquor  nuisance  a  judgmenl  is  proper  order- 
ing the  destruction  of  the  liquors  and  the  removal  and  sale  of  the 
fixtures  and  movable  property.24  And  a  conviction  of  a  person 
for  the  maintenance  of  a  nuisance  may  by  statute  be  made  a  pre- 
requisite to  a  right  to  abate  the  place  as  a  nuisance.  So  under 
a  code  provision  in  West  Virginia  that  "  all  houses,  buildings,  and 
places  of  every  description  where  intoxicating  liquors  are  sold  or 
vended  contrary  to  law  shall  be  held,  taken  and  deemed  to  be 
common  and  public  nuisances,  and  may  be  abated  as  such  upon 
the  conviction  of  the  owner  or  keeper  thereof,"  it  was  held  that  a 
court  of  equity  could  not  restrain  by  injunction  a  party  charged 
with  selling  intoxicating  liquors  contrary  to  law,  or  abate  the  ho 
building  or  place  where  such  intoxicating  liquors  were  alleged  to 
be  sold  contrary  to  law  until  the  owner  or  keeper  of  such  house  or 
place  had  been  convicted  of  such  unlawful  selling  at  the  place 
named  in  the  bill.25 

23.  pPr     Robinson,     C.     J.,     citing  24.  State   v.   Adams,   SI    Iowa    593, 

Milne  v.   Van    Buskirk,   0   Iowa   558;  47  N.  W.  770. 

Bartel   v.  Hobson,  107   Iowa  044,   7s  25.  Hartley  v.  Henretta,  33  W.  Va. 

N.  W.  G89.  222,  13  S.  E.  375. 


6gj.  INDICTMENTS    AND    INFORMATIONS. 


CHAPTEK  XXIV. 

INDICTMENTS  AND  INFORMATIONS. 

Section  637.  Charging  the  offensee — generally. 

638.  Charging  the  offense — application  of  general  rules. 

639.  Errors  in  spelling. 

640.  Defendants — joinder  of. 

641.  Name  of  accused. 

642.  Changing  class  to  which  defendant  belongs. 

643.  Name  of  purchaser  of  liquor. 

644.  Allegation  as  to  purpose  for  which  sold. 

645.  Stating  offense  in  caption. 

646.  Indictment  must  not  charge  disjunctively. 

647.  Where  statute  is  in  disjunctive — use  of  conjunctive. 

648.  Surplusage  does  not  vitiate. 

649.  Matters  of  evidence. 

650.  Matters  of  defense. 

651.  Want  of  a  license. 

652.  Sale  to  minor — want  of  consent  of  parent  or  guardian. 

653.  Averment  as  to  place — generally. 

654.  Averment  as  to  place  continued. 

655.  Averment  as  to  place — description  of  building. 

656.  Changing  time  of  offense — generally. 

657.  Precise  time  not  esesntial. 

658.  Offences  consisting  of  succession  of  acts — charging  with  a  con- 

tinuando. 

659.  Time  of  essence  of  offense — sale  on  Sundays. 

660.  Sales  on  election  day. 

661.  Knowledge — intent. 

6C2.  General  rule  as  to  charging  in  language  of  statute. 

663.  Exceptions  in  statute — rule  as  to. 

664.  Exceptions  in  statute — application  of  rule. 

665.  Duplicity. 

666.  Indictments  not  duplicitons. 

667.  Joinder  of  offenses. 


g    ,;;;7j  [NDICTMENTS    AND    INFORMATIO  685 

§  637.  Charging  the  offense  generally. 

By  the  constitution  of  the  United  States  and  also  generally  by 

the  constitutions  of  the  several  States  it  is  provided  that  the  ac- 
cused is  entitled  to  demand  the  nature  and  cause  of  the  accusation 
against  him.1  It  is  a  general  rule  that  it  is  nut  -ufficienl  to  charge 
in  an  indictment  that  the  defendant  has  committed  a  certain  speci- 
fied crime  but  that  it  must  be  stated  how  he  committed  the  crime 
by  reciting  the  material  facts  and  circumstances  constituting  the 
offense.2  And  it  is  also  a  general  rule  that  in  an  indictment  the 
nature  of  the  offense  and  the  party  upon  whom  it  was  committed 
should  be  stated  with  such  certainty  that  the  accused  may  know 
what  he  is  called  upon  to  answer.3  These  general  principles  ap- 
ply in  the  case  of  indictments  or  informations  for  a  violation  of 
the  intoxicating  liquor  laws.4  The  indictment  should  be  suffi- 
ciently precise  it  charging  the  offense  to  protect  the  accused  from 
a  second  prosecution  for  the  same  offense.5  And  this  rule  as  to 
certainty  also  applies  in  the  case  of  a  complaint  charging  a  viola- 
tion of  a  city  ordinance  in  respect  to  the  sale  of  liquors.'"'  But  the 
fact  that  a  charge  in  an  indictment  or  information  is  stated  in  gen- 

!•  Joyce  on   Indictments,  Sec.  237.  Buren,  Circuit  Judge.  130  Mich.  695, 

2.  Joyce   on    Indictments,   Sec   240.  90  X.  W.  694. 

8.  Joyce  on   Indictments,   Sec.   250.  Missouri. — State    v.     Cox,     2'.'     M". 

*.  Connecticut. — Barth  v.  State,  18  475. 

Conn.  431.  New    York. — People    v.    Ban 

Delano  re.— State  v.  Solio,  4  Penn.  N.  Y.  App.  Div.  559,  71   X.  Y.  Supp. 

1:;s    54   A,i    684.  123,  15  X.  Y.  Cr.  400:  People  v.  Olm- 

'         .        ,,    ,,  0.    ,        11Q       sted,    74    Hun.    323.    20    X.    Y.    Supp. 

Georgia. — Maddox      v.     State,     118  '  ' 

SIS. 


Ga.  32,  44  S.  E.  800;  O'Xeil  v.  State, 
116  Ga.  839,  13  S.  E.  2  is. 

Kansas. — State  \.   Etatner,   tl   Kan. 
429,  24  Pac.  953. 


North  Carolina. — State  v.  Farmer. 
104  X.  C.  887,   10  S.  E.  563. 

Texas. — Burch  v.  Republic,  1  Tex. 
608. 


Kentucky.— Commonwealth    v.    Ri-  Vermont.— State  v.  Wooley,  59  Vt. 

ley,  14  Bush.  44.     Commonwealth  v.  357   m   \)i   si. 

White,  is  B.  Mon.   192.  5.  Seifried   v.   Commonwealth,    101 

afoine.-^tate  v.  Lane.  33  Me.  536.  Pa.   St.   200;    Alexander  v.   State,   -J'.' 

Maryland.     State  v.  Kiefer,  90  Md.  Tex.  195. 

165,  44  Atl.   1043.  «!-  Cunningham  v.   Berry,   17 

Michigan. — Anderson         v.         Van  (\±2.  22   Pac.   115. 


6S6  INDICTMENTS    AND    INFORMATIONS.  [§   638 

eral  terms  will  not  usually  be  regarded  as  fatal  after  verdict 
though  if  the  attention  of  the  court  had  been  called  to  the  indefi- 
niteness  by  a  demurrer  or  motion  to  quash  it  might  have  been  so 
held.7  The  legislature  has  not  the  power  to  dispense  with  such 
allegations  in  indictments  as  are  essential  to  reasonable  particu- 
larity and  certainty  in  the  description  of  the  offense.8 

§  638.  Charging  the  offense — application  of  general  rules. 

A  statute  requiring  a  concise  statement  of  the  offense  to  be  set 
forth  is  not  complied  with  by  an  allegation  that  the  act  of  the 
defendant  was  wilfully  done.9  And  it  has  been  held  insufficient 
to  allege  simply  that  the  act  was  contrary  to  law.10  So  an  indict- 
ment charging  that  the  defendant  did  "  unlawfully  sell  intoxicat- 
ing liquor,  to  wit,  unlawfully  to  one  "  etc.,  was  held  not  to  charge 
the  offense  with  sufficient  certainty.11  And  a  complaint  charging 
the  defendant  with  selling  "  a  quantity  of  spirituous  liquors  "  but 
which  does  not  allege  that  the  sale  was  in  violation  of  the  provisions 
of  any  law  charges  no  offense  it  being  declared  that  the  court  will 
not  assume  that  acts  which  are  consistent  with  innocence  and  not 
alleged  to  be  in  violation  of  law  are  criminal.12  Where  the  statute 
prohibiting  the  unlawful  sale  of  liquors  defines  several  offenses  it 
is  not  sufficient  to  charge  an  unlawful  sale  but  the  particular  kind 
of  offense  which  is  unlawful  should  be  stated.13  So  where  the 
statute  mentions  several  different  sales  which  a  druggist  is  pro- 
hibited from  making  it  is  not  sufficient  to  charge  him  with  a  sale 
"  not  made  under  and  in  compliance  with  the  general  laws."  14 
And  where  it  is  no  offense  to  sell  or  give  away  liquor  unless  it  be 

7.  State   v.    Ratner,    44    Kan.    429,       State,  61  Ala.  208. 

24  Pac.  953.  11-  State  v.   Solio,  4  Penn.    (Del.) 

8.  McLaughlin    v.    State,    45    Ind.       138,  54  Atl.  084. 

338.  12.  State  v.  Lane.  33  Me.  537. 

!>.   People    v.    Gregg,    59    Hun.    (N.  13.  State  v.  Burkett,  51  Kan.   175, 

Y.)   107.  13  N.  V.  Supp.  114.  32    Pac.   025. 

10.  State    v.    Schmid,    57    N.    J.    L.  14.  Anderson  v.  Van  Buren,  Circuit 

625,  31  Atl.  280.     Examine  Ulmer  v.  Judge  130  Mich.  695,  90  N.  W.  694. 


<  ,;3S]  iM)H  tm i:\rs   and    informations.  687 

(lone  in  the  manner  prohibited  by  statute  in  charging  the  offense 
the  mode  of  sale  or  gift  should  be  specified  -<>  as  to  bring  it 
within  the  statute.15  And  an  indictment  agains!  a  physician  for 
giving  a  false  and  fraudulent  prescription  for  1  i < j 1 1 < .  1  •  ~  should  set  out 
not  only  that  the  prescription  was  false  and  fraudulent  but  in 
what  particulars  such  falsity  and  fraud  consisted.1*  Again  an 
indictment  against  a  county  clerk  for  unlawfully  issuing  a  license 
to  sell  liquor  in  a  local  option  district  is  insufficient  where  it  fails 
to  aver  that  his  action  was  from  a  corrupt  motive  or  fraudulent,  or 
that  he  knew  that  it  was  unlawful  for  him  at  the  time  to  issue 
the  license.17  But  where  the  quantity  of  liquor  sold  is  not  an 
element  of  the  offense  it  need  not  be  alleged.18  And  in  a  com- 
plaint for  an  unlawful  sale  of  intoxicating  liquor,  it  is  not  neces- 
sary to  allege,  neither  on  the  trial  is  it  held  to  be  necessary  to 
prove,  whether  it  was  by  the  defendant's  own  hand,  or  by  that  of 
his  clerk,  servant  or  agent  that  the  sale  was  made.19  And  an 
indictment  for  the  unlawful  sale  of  intoxicating  liquor,  contrary 
to  the  local  option  liquor  law,  need  not  allege  that  the  sale  was  for 
a  valuable  consideration.20     In  South  Dakota  it  has  been  decided 

15.  People     v.     Norton,     76     Hun.       lion   lie   is   charged   with    illegally    is- 
(N.  Y.)   7,  27  N.  Y.  Supp.  851.  suing.      State    v.    Manning,    87    Mo. 

A  decree  enjoining  all  persons  from  App.   78. 

maintaining  a  liquor  nuisance  on  the  17.  Commonwealth    v.    Wood,    116 

premises  therein  described  is  sufficient  Ky.  74S.  7(i  S.  \Y.  842. 

as    a    public    record    to    impart    con-  Where   a  decree  enjoins   the   niain- 

structivf  notice  to  all  persons,  so  as  tenance    of    a     nuisance    on    certain 

to  render   any  person   guilty   of   con-  premises   it   is  a  violation  thereof  to 

tempt     who     sells     liquors     on     such  maintain   a   place  there  for  soliciting 

premises.         Dormody       v.       Jackson  orders  for  intoxicating  liquors  to  be 

(Iowa   1910),  125  X.  W.  used     as    a    beverage.       Seidlitz     v. 

16.  State    v.    Farmer,    lot    N.    C.  Jackson     (Iowa     mini.    125    X.    W. 
887,  10  S.   E.  .">»;:;.  -:;"-     citing     McCollum     v.     McCon- 

Prescription     illegally     issued  aughty,     141     Iowa     172,    110    X.    W. 

by  druggist. — An  indictment   charg-  539. 

inc  that  the  prescription  in  question  ,s-  lUock  v.  State  66  Ala.  493. 

was   issued   to   one   Ed.    Spencer  and  1».  state  v.  Brown,  ::i  Me.  520. 

that  it  was  for  the  -ah-  of  intoxicat-  -°-  Bowel!  v.  State,  124  Ga.  t'-08,  52 

ing  liquors  i-  sufficient  to  give  notice  S.  E.  649. 
to  the  defendant  of  the  very  presrrip- 


GS8  INDICTMENTS    AND    INFORMATIONS.    [§§   039,640,641 

that  an  information  stating  the  time  when,  the  place  where,  and 
the  person  helieved  to  be  guilty  of  the  offense  of  keeping  intoxi- 
cating liquors  for  sale  as  a  beverage,  contains  all  the  essential  ele- 
ments for  an  information  under  the  statute.21 

§  639.  Errors  in  spelling. 

Errors  in  spelling  do  not  vitiate  an  indictment  or  information 
where  the  meaning  is  not  thereby  changed  or  rendered  obscure.  It 
will  not  be  held  defective  if  it  clearly  indicates  the  intention  of  the 
pleader  and  there  can  be  no  mistake  as  to  what  is  meant.22  This 
rule  has  been  applied  in  the  case  of  the  use  of  the  word  "  spirit- 
ual "  23  or  "  spiritous  "  in  an  indictment  for  the  unlawful  sale  of 
spirituous  liquors.24 

§  640.  Defendants — joinder  of. 

Where  more  persons  than  one  engage  in  the  doing  of  a  criminal 
act  in  such  a  way  as  to  make  each  one  guilty  of  the  crime,  they  may 
be  jointly  indicted,  either  in  a  single  count  or  in  separate  counts.25 
So  two  or  more  persons  may  be  jointly  charged  in  the  same  indict- 
ment with  the  offense  of  selling  spirituous  liquor,  without  license.26 
But  it  is  decided  that  there  should  be  no  joinder  in  the  absence 
of  proof  showing  a  common  design  or  concert  of  action.27 

§  641.  Name  of  accused. 

It  is  a  general  rule  that  in  an  indictment  or  information  both 
the  Christian  and  the  surname  of  the  accused  should  be  stated.28 
But  while  it  would  be  better  for  the  indictment  to  state  the  name 
of  the  accused  in  full  yet  it  is  held  that  a  failure  to  state  the 

21.  State  v.  Brennan,  2  S.  D.  384,  26.  Commonwealth  v.  Sloan,  4 
50  N.  W.  625.  Cush    (Mass.)    52;   Commonwealth  v. 

22.  Joyce  on  Indictments,  §  204.  Harris,  7  Gratt  (Va.)   600. 

23.  State  V.   Clark,   3  Ind.  451.  27.  State  v.  Edwards,   60  Mo.  400. 

24.  Brumley  v.  State,  11  Tex.  App.  28.  See  Joyce  on  Indictments, 
114.  Chap.    IX.    as    to    allegations    as    to 

25.  Joyce  on  Indictments,  §  423.  name  and  description  of  the  accused. 


§  G42] 


INDICTMENTS    AND    ENFORMA1] 


689 


Chirstian  name  more  fully  than  by  initiale  is  not  a  good  ground 
for  a  plea  in  abatement  where  these  initials  were  correctly  stated 
and  are  the  initials  of  the  accused  person.2  ' 

§  642.  Charging  class  to  which  defendant  belongs. 

In  some  cases  it  is  not  essential  to  allege  the  particular 
class  of  dealers  to  which  the  defendant  belongs.30  So  where  it  is 
made  criminal  by  statute  to  sell  to  minors  without  the  consent  of 
their  parents  without  regard  to  whether  the  sale  ia  by  th<  keeper  of 
a  dramshop  it  is  not  necessary  to  aver  in  an  indictment  that  such  a 
sale  was  made  by  the  keeper  of  a  dram  shop.31  Tiider  a  large  pro- 
portion of  the  statutes,  however,  the  offense  can  only  be  committed 
by  one  of  a  particular  class  of  dealers  and  where  this  is  the  case  it 
is  an  essential  element  of  the  offense  which  should  be  shown  by  the 
indictment  or  information.32  Thus  under  a  statute  of  this  charac- 
ter it  may  be  necessary  to  allege  that  the  defendant  was  a  liquor 
dealer,33    dramshop    keeper,34    distiller,35    grocer,36    merchant,37 


2».  Eaves  v.  State,  113  Ga.  749,  39 
S.  E.  318. 

SO.  Arkansas,  State  v.  Butcher,  40 
Ark.  362. 

Maryland. — State  v.  Edlavitch,  77 
Md.  lit.  26  Atl.  406. 

Massachusetts. — ( lommonwealth  v. 
Luddy,  143  Mass.  563,  It)  X.  E.  448. 

Minnesota. — State  v.  McGinnis,  30 
Minn.  48,  14  X.  W.  256. 

Missouri. — Austin  v.  State,  10  Mo. 
591. 

81.  Johnson  v.  People.  83  111.  431. 

82.  Arkansas,  State  v.  Martin,  ::t 
Ark.  340. 

Kentucky. — Heiner  v.  Common- 
wealth, 13   Buch.  295. 

Maryland. — Bode  v.  state.  7  Gill. 
326. 

Minnesota. — State  v.  Heitsch,  29 
Minn.   134,   12  X.  \Y.  353. 

Missouri. — State   v.    Lisles.    .".s    Mo. 


359;   State  v.  Rinnan.  26  Mo.   167. 

\  •       York. — People  v.  Page,  3  Park 
Cr.  600. 

South    Carolina. — State  v.   Thomas 
7  Rich.  481. 

Dakota. — State  v.  Bradford. 
13  S.  D.  201,  83  X".  W.  47. 

Tennessee. — State    v.    Bradshaw,    2 
Swan.   627. 

Texas. — McQuerry  v.  State.  40  Tex. 
Cr.  571,  51    S.  W.  1217. 

Virginia. — Glass  v.  Commonwealth, 
33  Gratt.  827. 

Wisconsin. — Jensen     v.     State,     60 
Wis.  577,  19  X.  W.  374. 

:?.{.     state  v.   Martin.  34  Ark.  340. 

•">•  stair  v.  Lisles,  58  Mo.  ! 

86.  State    v.    Thomas,    7    Rich.    L. 
(S.  C.)   481. 

;:,:-   state    v.     Bradshaw.     2     S 
l  Trim.      627. 


690 


INDICTMENTS    AND    INFORMATIONS. 


[§  643 


physician,38  or  tavern  or  inn  keeper.39  And  where  no  one  but  a 
druggist,  pharmacist  or  an  assistant  can  hold  a  permit  to  sell 
liquors  it  is  held  to  be  necessary  to  specifically  aver  that  the 
defendant  was  one  of  these  three.40 


§  643.  Name  of  purchaser  of  liquor. 

It  is  a  general  rule  that  it  is  not  essential  to  the  sufficiency  of 
an  indictment  or  information  for  an  unlawful  sale  that  there  should 
be  an  allegation  of  the  name  of  the  purchaser.41  And  it  has  been 
held  sufficient  to  allege  that  the  defendant  "  did  sell  to  divers  per- 


37.  State  v.  Runyan,  26  Mo.  1G7. 

38.  McQuerry  v.  State,  40  Tex.  Cr. 
571.   51    S.   W.   247. 

39.  Kentucky. — Herine  v.  Common- 
wealth, 13  Bush  295. 

Maryland. — Bode  v.  State,  7  Gill 
626. 

Minnesota. — State  v.  Heitsch,  29 
Minn.  134,  12  N.  W.  353. 

New  York. — People  v.  Page,  3  Park. 
Cr.  600. 

Wisconsin. — .Jensen  v.  State,  GO 
Wis.  577,  19  N.  W.  374. 

40.  State  v.  Shinn,  63  Kan.  638, 
66  Pac.  650. 

An  indictment  for  the  sale  of  in- 
toxicating liquors  contrary  to  law 
need  not  charge  that  the  defendant  is 
not  a  registered  apothecary.  State 
v.  Mercer,  58  Iowa  1S2,  12  N.  W.  269. 

41.  Arkansas. — State  v.  Bailey,  43 
Ark.  150;  Johnson  v.  State,  40  Ark. 
453. 

Colorado. — Langan  v.  People,  32 
Colo.  414.  76  Pac.  1048. 

Florida.— Jordan  v.  State,  22  Fla. 
528. 

Georgia.— Wells  v.  State,  118  Oa. 
r,r,6,  45  S  E.  443;  Hancock  v.  State, 
114  Ga.  439,  40  S.  E.  317. 

Illinois. — Myers  v.  People,  67  111. 
435. 

Iowa. — State  v.  Becker,  20  Iowa 
438. 


Kansas. — State  v.  Moseli,  49  Kan. 
142,  30  Pac.  189;  Junction  City  v. 
Webb,  44  Kan.  71,  23  Pac.  1073; 
State  v.  Schneiter,  27  Kan.  449. 

Louisiana. — State  v.  Brown,  41  La. 
Ann.  771,  6  So.  638;  State  v.  Kuhn, 
24  La.  Ann.  474. 

Mississippi. — Lea  v.  State,  64  Miss. 
201,  1  So.  51;  Riley  v.  State,  43  Miss. 
397. 

Missouri. — State  v.  Wingfield,  115 
Mo.  42S,  22  S.  W.  363,  37  Am.  St. 
Rep.  406;  State  v.  Rogers,  39  Mo. 
431;  State  v.  Spain,  29  Mo.  415, 
State  v.  Back,  99  Mo.  App.  34,  72  S. 
W.  466. 

New  York. — People  v.  Polhamus,  8 
N.  Y.  App.  Div.  133,  40  N.  Y.  Supp. 
491. 

South  Dakota. — State  v.  Williams, 
11  S.  D.  64,  74  N.  W.  815. 

Tennessee. — State  v.  Hickerson,  3 
Heisk.  375. 

Vermont. — State  v.  Munger,  15  Vt. 
290. 

Virginia. — Commonwealth  v.  Smith, 
1  Gratt  553. 

West  Virginia. — State  v.  Chisnell, 
36  W.  Va.  659,  15  S.  E.  412;  State 
v.  Ferrell,  30  W.  Va.  683,  5  S.  E. 
155. 

Wisconsin. — State  v.  Gummer,  22 
Wis.  441. 


§  643] 


[NDICTMENTS    AND    INFORMATIONS. 


691 


sons"  without  stating  the  names  of  the  purchasers  or  that  their 
names  are  unknown.42  So  in  Georgia  ii  is  decided  thai  a  special 
presentment  under  the  code  as  to  sales  of  liquor  on  election  day 
need  not,  even  as  against  a  special  demurrer,  allege  the  name  of 
the  person  to  whom  the  liquor  is  claimed  to  have  been  sold,  given 
or  furnished.48  And  an  indictmenl  charging  that  the  defendant 
had  retailed  twenty  glasses  or  drams  of  intoxicating  liquor  to 
<livers  persons  at  divers  times  was  held  not  to  charge  more  than 
one  offense.44  In  other  jurisdictions  it  is  held  sufficient  to  aver 
that  the  name  of  the  person  to  whom  the  liquor  was  sold  is  un- 
known,1"' while  in  others  it  is  declared  that  the  name  should  be 
stated,46  or  if  his  name  is  unknown,  a  description  of  him  should  be 


42.  State  v.  Parnell,  10  Ark.  506, 
63  Am.  Dec.  72 ;  Osgood  v.  People, 
39  N.  Y.  449;  People  v  Adams,  17 
Wend,  i  X.  Y.)  475.  But  see  Yost  v. 
Cniuiiioiiwealth,  6  Ky.  Law  Rep.  110; 
State  v.  Couch,  54  S.  C.  286,  32  S.  E. 
408. 

Surplusage. — Where  an  indiet- 
menl  charged  the  defendant  with  a 
Bale  of  liquors  to  a  certain  person  it 
was  held  that  the  subsequent  words 
"  to  divers  other  person  i  to  the  jurors 
aforesaid  unknown"  set  forth  no 
criminal  offense  and  could  be  rejected 
as  surplus  ige.  State  v.  Jeffcoat,  r>  l 
s.  C.  196,  32  S.  E.  298,  citing  State 
v.  May,  45  S.  C.  512,  23  S.  E.  513; 
State  v.  Cassety,  1  Rich.  L.  (S.  C.) 
90. 

•  •"•■•  Newman  v.  State  101  Ga.  534, 
28  S.  E.  1005,  citing  Ricks  v.  State, 
16  Ga.  600;  Springfield  v.  State,  25 
Ga.  474:  Binton  \.  S1  ite,  68  Ga. 
322;  Carter  v.  State,  68  Ga.  826; 
Hill  v.  Mayor  of  Dalton,  72  Ga.  31  I  ; 
Williams  v.  State,  89  Ga.  183,  15  S. 
E.  552;  Redding  v.  Stat.-.  91  Ga.  231, 
18  S.  E.  289. 

44.  Zumhoff  v.  State,  4  G.  Greene 
(Iowa  i   526. 


45.  Indiana. — Ashley  v.  State,  92 
Ind.  559;  McLaughlin  v.  State,  45 
Ind.  338. 

Maryland. — Capritz  v.  State,  1  Md. 
569. 

V.  braska. — Martin  v.  State,  30  Xeb. 
421,  46  N.  W.  618. 

\<  r  Jersey. — Flannagan  v.  Plain- 
field.  44  X.  J.  L.  118. 

Rhode  Island. — State  v.  Doyle,  11 
R.  I.  574. 

Smith  Dakota. — State  v.  Boughner, 
5  S  D.  461,  59  X.  W.  736. 

Tennessee. — State  v.  Carter,  7 
Humph.  158. 

Texas. — Dixon  v.  State,  21  Tex. 
App.  517,  1  S.  W.  448. 

Washington. — Slate  v.  Bodecker,  11 
Wash.    117.  39   Pac.  645. 

'<:•  Llamama. — Doman  v.  State,  34 
Ala.  216. 

Delaware. — state  v.  Walker,  3 
Harr.  547. 

ma— Blodget   v.  State.  3   I   d. 
103. 

Iowa. — State  v.  Allen.  32  [owa  491. 

Kentucky. — Wilson  v.  Common- 
wealth, 14  Bush.  159;  Commonwealth 
\.  Benge,  13  Ky.  L.  Rep.  591. 


692  INDICTMENTS    AND    INFORMATIONS.  [§   644 

given.47  So  in  a  recent  case  in  Michigan  it  is  held  that  in  charging 
one  with  making  a  sale  in  violation  of  law  it  is  usual  and  necessary 
to  state  to  whom  the  sale  was  made,  and,  if  all  sales  were  not  un- 
lawful, to  show  that  it  was  unlawful  by  stating  wherein  it  was.48 
And  in  Korth  Carolina  it  has  been  decided  that  an  indictment  for 
selling  or  giving  away  spirituous  liquors  during  a  public  election 
should  set  forth  the  name  of  the  person  to  whom  the  liquor  was 
sold  or  given.49  In  this  connection  it  may  be  remarked  that  under 
such  statutes  the  sale  is  generally  made  unlawful  irrespective  of  the 
one  to  whom  the  sale  is  made  and  that  this  being  so  it  should  be 
sufficient  simply  to  charge  a  sale  without  giving  the  name  of  the 
person  to  whom  it  was  made  as  in  many  cases  it  would  be  impossible 
perhaps  to  allege  the  name  of  such  person,  and,  if  necessary  to 
allege  the  name,  violations  of  such  laws  would  be  much  more 
different  to  successfully  prosecute. 

§  644.  Allegation  as  to  purpose  for  which  sold. 

It  may  be  necessary  under  the  statute  for  a  violation  of  which 
the  defendant  is  prosecuted  to  allege  in  the  indictment  the  purpose 
for  which  the  liquor  was  sold.50  So  it  is  held  that  an  indictment 
should  allege  that  the  liquor  was  sold  to  be  drank  as  a  beverage 
where  by  the  statute  the  offense  is  a  sale  of  it  for  such  a  purpose.51 
And  where  the  statute  makes  the  selling  of  intoxicating  liquors  as 
a  beverage  an  offense,  an  information  charging  a  person  with  sell- 
ing "  intoxicating  liquors  maliciously  and  willfully"  charges  no 
offense  either  at  common  law  or  under  the  statute.52 

North   Carolina. — State  v.  Stamey,  Pac.  650;  State  v.  Humphrey,  40  Mo. 

71   N.  C.  202.  App.  327.     Compare  Staff  v.  State,  33 

South  Carolina. — State  v.  Couch,  54  Ind.    255,    71    N.    E.    165;    Common- 

S.  C.  280,  32  S.  E.  408.  wealth  v.  Murphy,  155  Mass.  284,  29 

.— Drechsel    v.   State,   35   Tex.  N.  E.  469. 
Cr.  580,  34  S.  W.  934.  51.  Allman  v.   State,  09   Ind.   387; 

47.  State  v.  Schmail,  25  Minn.  308.  Dowdell  v.  State,  58  Ind.  333;   State 

48.  Anderson  v.  Van  Buren  Circuit  v.  Dunlap,  81  Me.  389,  17  Atl.  313; 
Judge,  130  Mich.  097.  90  N.  W.  092.  State  v.   Buckner,   20  Mo.  App.  420. 

i!>.  Stale  v.  Stamey.  71    X.   C.  202.  52.  State  v.  Hafsoos,   1    S.   D.   382, 

50.  State  v.  Shinn,  63  Kan.  038,  60       47  N.  W.  400. 


5§   645,646]       INDICTMENTS    AND    [NFORMATU  693 

§  645.  Stating  offense  in  caption. 

It  is  doI  accessary  to  state  the  offense  in  the  caption  it  being 
sufficient  if  stated  in  the  body  of  the  indictment.63  And  if  the 
name  is  stated  or  the  offense  described  in  the  caption  and  such 
statement  or  description  is  in  conflicl  with  that  given  in  the  body 
of  the  indictment,  the  latter  will  control.64 

§  646.  Indictment  must  not  charge  disjunctively. 

It  is  said  to  be  elementary  that  an  indictment,  information  or 
complaint  must  not  charge  the  accused  disjunctively,  so  as  to 
leave  it  uncertain  what  its  relied  on  as  the  accusation  against 
him.55  So  an  indictment  charging  that  the  defendant  "  did  sell  or 
give  away  "  whisky  is  defective.53  And  also  a  complaint  alleg- 
ing that  the  defendant  sold  "wines,  spirituous  liquor  or  other 
intoxicating  beverage,"  is  defective.57  And  a  complaint  has  been 
held  bad  which  alleged  that  the  intoxicating  liquors  were  kept 
by  the  defendant  or  by  some  other  person  with  his  consent.58  Hut 
where  the  information  charged  the  defendant  with  keeping  a 
"  store  or  shop  "  for  the  sale  of  liquors  it  was  declared  that  the 

5.1.  Williams  v.  State,  47  Ark.  230,  Grey.  2  Gray  501,  01   Am.  Dec.  476. 

1  S.  W.  14!'.  Missouri. — State  v.    Fairgrieve,    29 

.".l.  .loy,r  mi   Indictments.   §   167.  Mo.  App.  641. 

.-„-».. i  oyce  on  Indictments,  Sees.  259,  Rhode   Island.— State  v.   Colnell,   3 

382.  R.  I.  284. 

■I'"'""''"- Raisler  v.  State,  55  Ala.  Wisconsin.— Clifford    v.    State,    29 


04. 

Connecticut. — Smith    v.    State,    19 
Conn.  493. 


Wis.  327. 

Surplusage. — An    indictment     will 

not  be  vitiated  by  the  insertion  after 
Qeorqia. — Maddox  v.  State,  118  Ga.  .         .        ;  .  . 

the  disjunctive  of  an  allegation  which 


i-  superfluous  and  may  be  rejected  as 
surplusage.  Joyce  mi  [ndictments, 
Sec.  260. 


32,  it  s.  E.  sue,;  Eaves  v.  State, 
113  Ga.  749,  39  S.  E.  318;  Grantham 
v.  State,  8!)  Ga.  121,  14  S.  1'..  892. 

Kentucky. — Locke  v.  Common- 
wealth, 23  Ky.  L.  Rep.  740,  63  S.  W.  56<  Thompson  v.  State,  37  Ark.  408. 
795;  Raubold  v.  Commonwealth,  23  '•'■  Smith  v.  State,  L9  Conn.  40.3. 
Ky.  L.  Rep.  735.  63  S.  W.  781.                  But    see  Morgan  v.  Commonwealth,  7 

Maine.— State    v.     Moran,    40    Me      Gratt     (Va.)    592,    followed    in    Cun- 
129.  ningham  v.  State,  5  W.  Va.  508. 

Massachusetts.— Commonwealth     v.  •"*•  State  v.  Moran,  m  Me.  129. 


0«)4  INDICTMENTS    AND    INFORMATIONS.  r§    G47 

words  store  and  shop  as  used  in  the  statute  being  of  equivalent 
import,  the  use  of  the  alternative  was  not  fatal.59  And  in  Ala- 
bama a  count  charging  that  the  defendant  "  sold  spirituous,  vinous 
or  malt  liquors  "  has  been  held  sufficient  under  a  code  provision 
permitting  such  an  allegation.00  And  in  a  case  in  Wisconsin  where 
a  complaint  charged  the  sale  of  "  intoxicating  or  malt  liquors  " 
it  was  held  that  the  word  "  or  "  was  used  to  explain  the  kind 
of  intoxicating  liquors  sold  and  that  the  complaint  was  sufficient, 
but  evidence  of  the  sale  of  any  other  than  malt  liquors  was  held 
inadmissible.61 

§  647.  Where  statute  is  in  disjunctive — use  of  conjunctive. 

Where  a  statute  makes  it  a  crime  to  do  either  of  several  things 
disjunctively  the  same  may  be  embraced  in  a  single  count  using  the 
conjunction  "  and  "  in  place  of  "  or  "  and  is  not  subject  to  the  ob- 
jection that  more  than  one  offense  is  charged.62  So  it  is  said  in 
this  connection :  "  Where  the  legislature  for  the  purpose  of  sup- 
pressing vice  or  preventing  a  wrong,  has,  by  statute,  made  the 
vice  or  wrong  or  criminal  offense,  and,  in  defining  the  offense,  has 
specified  a  series  of  acts  either  of  which  separately  or  all  together 
may  constitute  an  offense,  and  has  prescribed,  as  here,  the  same 

59.  Barth  v.  Connecticut,  18  Conn.  it  has  been  said  that  it  is  permissible 
431.  where    the    statute    may   be    violated 

60.  Cost  v.  State,  96  Ala.  00,  11  So.  in  one  of  several  ways,  to  charge  or 
435;  Powell  v.  State,  69  Ala.  60.  allege    conjunctively    that    the    party 

61.  State  v.  Boucher,  59  Wis.  477,  violated  the  statute  by  all  the  means 
18  N.  W.  335.  set  forth  in  the  law;  but  it  is  not  per- 

62.  Cranor  v.  Albany,  43  Oreg.  144,  missible,  under  any  circumstances,  to 
71  Pac.  1042;  State  v.  Beckroge,  49  charge  it  in  the  alternative.  The 
S.  C.  484,  27  S.  E.  658.  allegations   must  be   distinct   and  af- 

Where    a    statute    enumerates    sev-  Urinative,   and   not   uncertain   nor   in 

eral  acts  disjunctively,  which  together  the    alternative.      Joyce    on    Indict- 

or  separately  shall  constitute  the  of-  ments,  Sec.   382. 

fense,  an  indictment  thereunder  if  it  An  indictment  charging  the  sale  of 

charges  more  than  one  of  them,  which  different  liquors  conjunctively  is  held 

it   may   do   even    in    the   same  count,  good.     Eaves  v.   State.    113   Ga.   749, 

should  do   so  in  the  conjunctive,  and  39   L.    E.    318;    Raubold    v.    Common- 

if  the  disjunctive  is  used,  the  indict-  wealth,  23  Ky.  Law  Rep.  7:;.").   63  S. 

ment  will  be  had  for  uncertainty.     So  W.  781;  State  v.  Pittman,  76  Mo.  56. 


§  648]  INDICTMENTS    AND    INFORMATIONS.  695 

penalty  for  the  commission  of  one  or  all  of  the  acts,  i1  i-  well 
tied  that  the  commission  of  any  two  or  more  of  them  may  be  al- 
leged in  the  same  count  of  an  indictment,  if  conjunctively  charged. 
Although  each  acl  by  itself  may  constitute  an  offense  under  the 
statute,  yet  if  they  are  all  committed  by  the  same  person,  a1  the 
same  time  and  place,  they  are  to  be  considered  as  parts  of  the 
same  transaction  and  collectively  constitute  a  single  offei 
And  when  a  statute  is  in  the  disjunctive  the  acts  should  be  charged 
in  the  conjunctive  unless  they  be  repugnant.'''1  And  where  the 
offenses  are  charged  conjunctively,  a  conviction  or  acquittal  may 
be  pleaded  in  bar  of  a  subsequent  prosecution  for  all  or  either  oi 
the  offenses  whether  charged  separately  or  together.65 

§  648.  Surplusage  does  not  vitiate. 

It  is  a  general  rule  that  an  indictment  will  not  be  vitiated  by 
matter  which  is  mere  surplusage  and  that  such  matter  need  not  be 
proved.06  And  this  rule  applies  in  the  case  of  indictments  or 
informations  for  violations  of  the  liquor  laws.07  So  where  an  in- 
dictment in  charging  an  offense  as  a  common  seller  and  alleging 
a  former  conviction  set  out  all  the  essential  features  of  the  offense 
and  added  the  unnecessary  words  "under  the  laws  for  the  sup- 
pression of  drinking  houses  and  tippling  shops  "  it  was  held  thai 
such  words  were  immaterial  and  could  be  rejected  as  such.  The 
court  said:  "  It  is  merely  an  incorrect  and  unnecessary  over  atate- 


63.  Morganstem  v.  Commonwealth,  Maine. — State  v.  Pillsbury,  47   Me. 
94  Va.  Ts7.  26  S.  E.  402.  449;  State  v.  Staples,  45  Me.  320. 

64.  State    v.     Fairgrieve,    -J1'     Mo.  Nebraska  — State   v.    Ball,   27    Neb. 
App.  641,  citing  state  v.  Fitzsimmons,  601,  4.".  V  E.  398. 

30  Mo.  236.  V         York. — People  v.   Townsey,   5 

65.  Clifford  v.  State.  29  Wis.  327.  Den.  70,  Eodgman  v.  People,  4  Den. 
c;<;.  Joyce  on  Indictments,  Sec.  263.  235. 

*>7.  Georgia.— Barker  v.  state   117  .     Segars   v.   State    (Tex.   Cr. 

Ga.  428,   13  S.  E.  744.  App.   1899),  51   S.  W.  398. 

Kentucky.— Commonwealth   v.   Bel-  West    Virginia. — State  v.   Hall,   26 

back,  lui    K.\.   166,  40  S.  W.  245,   19  W.  Va.  236. 
Ky.  L.  Rep.  27s. 


696  INDICTMENTS    AND    INFORMATIONS.        [§§    649,650 

inent.  All  the  essential  features  are  found  in  the  count  without 
such  statement.  The  count  is  perfect  without  it  and  not  vitiated 
with  it.  The  super-added  words  do  not  mislead  any  one."  68  And 
where  an  indictment  in  charging  the  offense  stated  that  an  election 
had  been  held  prohibiting  the  "  sale  or  exchange  "  of  intoxicating 
liquors  and  the  result  of  the  election  was  only  to  prohibit  the 
"  sale  "  it  was  held  that  the  words  "  or  exchange "  should  be 
treated  as  surplusage.09 

§  649.  Matters  of  evidence. 

Where  particular  facts  are  to  be  regarded  as  matters  of  evi- 
dence it  is  a  general  rule  that  they  need  not  be  minutely  described 
in  charging  the  offense.  The  inserting  of  matters  of  this  kind 
not  only  encumbers  but  in  many  cases  tends  to  obscure  the  meaning 
of  the  indictment  or  to  make  the  prosecution  more  difficult  of  a 
successful  accomplishment.70  So  charging  a  sale  in  violation  of 
the  statute  may  be  sufficient  without  setting  forth  the  details  show- 
ing how  the  sale  was  made.71 

§  650.  Matters  of  defense. 

Matter  of  defense  need  not  be  anticipated  by  the  State  so  as 
to  require  an  averment  in  an  indictment  of  facts  which  will  render 
them  unavailable.72  So  an  indictment  against  a  physician  for  giv- 
ing a  false  and  fraudulent  prescription  need  not  aver  that  the 
physician  was  a  "reputable"  physician  as  this  is  a  matter  of 
defense.73  And  it  is  sufficient  to  charge  the  keeping  open  of  a  place 
for  the  sale  of  liquor  or  the  actual  selling  of  the  liquor  as  on  an 


68.  State  v.  Hatch,   94  Me.   58,  46  443;   Arrington  v.  Commonwealth,  87 
Atl.   796.  Va.  96,  12  S.  E.  224,  10  L.  R.  A.  242. 

69.  Segars  v.  State   (Tex.  Cr.  App.  72.  State  v.  Powell,  3  Lea  (Tenn.) 
1899),  51  S.  W.  398.  164. 

TO.  Joyce  on   [ndietments,  §  277.  See  Joyce  on  Indictments,  Sec.  279. 

71.  Caldwell   v.   State,  43  Fla.  545,  7."i.  state  v.  Farmer,  104  N.  C.  887, 

30  So.  814;   Denive  v.  State,  4  Iowa  10  S.  E.  563. 


§§   651  652]       INDICTMENTS    AND    INFORMATIONS. 


697 


election  day  without  stating  thai   an  election   was  actually  held 
since  it  would  be  a  matter  of  defense  if  no  election  was  held.74 

§  651.  Want  of  a  licer 

Where  the  act  only  becomes  an  offense  when  done  withoul  a 
license  the  want  of  a  license  is  an  essential  element  thereof  and 
an  allegation  of  such  a  fact  is  necessary  to  a  proper  charging  of 
the  offense.75 

§  652.  Sale  to  minor — want  of  consent  of  parent  or  guardian. 

The  selling  or  giving  of  liquor  to  a  minor  may  be  unlawful  only 
when  done  without  the  consent  of  the  parent  or  guardian  and 
where  this  is  the  case  the  indictment  should  contain  an  allegation 
showing  the  want  of  such  consent.76  So  an  indictment  charging  a 
sale  to  a  minor  without  his  parent's  consent  in  writing  and  not 
negativing  the  consent  of  his  guardian  is  bad  on  demurrer."7  And 
where  the  statute  makes  it  an  offense  to  sell  without  the  consent  of 
the  parent  or  guardian,  negativing  authority  from  the  mother  is 
not  sufficient.78    Again  under  a  statute  making  in  an  offense  to  sell 


7*.  State  v.  Powell.  3  Lea  (Tenn.) 
104;  State  v.  Irvine,  3  Heish  (Tenn.) 
155. 

".".  Alabama. — Koopman  v.  State, 
<U   Ala.  70. 

Georgia. — Hardison  v.  State,  95  Ga. 
337,  22  S.  E.  681. 

Indiana. — O'Brien  v  Stale.  03  Ind. 
212:  Meier  v.  State,  57  Ind.  380; 
Slate  v.  Carpenter.  20  Ind.  21!>. 

Kansas.  —  State  v.  l'itzer.  2-".  Kan 
250;  State  v.  Pittman,  in  Kan.  593. 

Massachusetts.  -Commonwealth  v. 
Crossley,  162  Mass.  515,  39  N.  E.  27S. 

Minnesota. — state  v.  Nerbovig,  33 
Minn.  480,  24  X.  YV.  321. 

New  Hampshire.— State  v.  Blaisdell, 
33  X.  II.  388. 

New  Jersey. — Fleming  v.  New 
Brunswick,  47  X.  J.  L.  231;  Greeley 
v.  Passaic,  42  X'.  J.  L.  87. 


North  Carolina. — State  v.  Holder, 
133  N.  C.  709,  45  S.  E.  862. 

Texas. — Williamson  v.  State,  41 
Tex.  Cr.  401,  55  S.  YV.  508. 

Vermont. — State  v.  Munger,  L5  Vt. 
290. 

Virginia. — Commonwealth  v.  Hamp- 
ton,  3  Gratt.   590. 

Wisconsin. — Sires  v.  state.  7:;  Wis. 
251,  41  X.  W.  81. 

re.  Parkinson  v.  state.  1  i  \M.  L84, 
7  1  Am.  Dee.  522  X.  Compare  Frei- 
berg  v.  state.  94  Ala.  91,  10  So.  703. 

77.  State  v.   Kmeriek.   35  Ark.   324. 

78.  Newman   v.   state,  63  Ga.  :>■■:;. 

followed    in    Ilevman    v.    State,   lit    (la. 

437.  See  also  Lantzmester  v.  state. 
19  'lex.  App.  320,  holding  that  neither 
of  t  lie  words  "  father  "  or  "  mother  '" 
is  equivalent  to  the  word  parent. 


698 


INDICTMENTS    AND    INFORMATIONS. 


[§  653 


to  a  minor  without  the  written  "  consent  or  request  "  an  indict- 
ment charging  a  sale  without  the  written  request  and  consent  is 
held  defective.79 

§  653.  Averment  as  to  place  generally. 

It  is  a  general  rule,  except  so  far  as  modified  by  statute,  that 
an  indictment  should  state  the  place  where  the  offense  was  com- 
mitted so  that  it  may  appear  that  the  court  has  jurisdiction.80  In 
this  connection  an  allegation  that  the  offense  was  committed  in  a 
certain  ward  of  a  city  has  been  held  sufficient  without  stating  the 
name  of  the  street  or  the  number  of  the  house.81  And  an  allega- 
tion of  a  sale  within  a  certain  town  located  in  a  certain  county  has 
been  held  sufficient  82  as  has  also  an  allegation  that  the  offense  was 
committed  in  a  certain  precinct  83  and  likewise  a  charging  of  the 
offense  as  within  the  county.84     Where  the  offense  can  only  be 


79.  Commonwealth    v.    Haderaft,   6 

Bush    (Ky.)   91. 

80.  Joyce  on  Indictments,  §  296. 
Alabama. — Hafter  v.  State,  51  Ala. 

37;  Harris  v.  State,  50  Ala.  127. 

New  Jersey. — Rogers  v.  State,  58 
N.  J.  L.   220,   33   Atl.  283. 

New  York. — Blasdell  v.  Hewit,  3 
Caines  137. 

South  Dakota. — State  v.  Donald- 
son, 12  S.  D.  259,  81   N.  W.  299. 

Virginia. — Arlington  v.  Common- 
wealth,  87  Va.  96,  12  S.  E.  224,  10 
L.  R.  A.  242;  Commonwealth  v.  Head, 
11   Gratt.  819. 

The  technical  certainty  in  al- 
leging time  and  place,  which  is  de- 
manded in  indictments  for  felonies, 
is  not  required  in  indictments  for  mis- 
demeanors under  the  liquor  laws. 
State  v.  Scampini,  77  Vt.  92,  59  Atl. 
201. 

81.  Schwab  v.  People,  4  Hun  (N. 
V.,    520. 

82.  Connecticut. — State  v.  Basser- 
man,  54  Conn.  88,  6  All.  185. 


Massachusetts. — Commonwealth  v. 
Bennett,  108  Mass.  27 ;  People  v. 
Ringsted,  90  Mich.  371,  51  N.  W.  519. 

Minnestota. — State  v.  Peterson,  38 
Minn.  143,  36  N.  W.  443. 

Nebraska. — Peterson  v.  State,  64 
Neb.  875,  90  N.  W.  964. 

New  York. — People  v.  Polhamus,  8 
App.  Div.  (N.  Y.)  133,  40  N.  Y. 
Supp.  491. 

Routh  Dakota. — State  v.  Donaldson, 
12  S.  D.  259,  81  N.  W.  299. 

83.  Woods  v.  State  (Tex.  Cr.  App. 
1903),  75  S.  W.  37.  See  Bogard  v. 
State  (Tex.  Cr.  App.  1900),  55  S.  W. 
494. 

84.  Georgia. — Hussey  v.  State,  69 
Ga.  54. 

Indiana. — State  v.  Schreiber,  98 
Ind.  184;  Werneke  v.  State,  49  Ind. 
202. 

Kansas. — State  v.  Allen,  63  Kan. 
598,  66  Pac.  628. 

North  Carolina. — State  v.  Emery. 
98  N.  C.  668,  3  S.  E.  636. 


§§654,655]       INDICTMENTS    AND    INFORMATIONS.  699 

committed  in  a  certain  municipal  division,  which  ie  less  than  the 
county  within  the  jurisdiction  of  the  court,  the  oame  or  description 
of  such  division  and  the  fad  that  the  offense  was  committed 
therein  should  be  set  forth  in  the  indictment.86 

§  654.  Averment  as  to  place  continued. 

A  more  specific  averment  of  the  location  of  the  place  is  in  some 
cases  essential  in  order  to  bring  the  offense  within  the  terms  of  tin- 
statute  creating  it.80  So  where  the  punishment  depends  upon  the 
place  where  the  act  constituting  the  offense  was  committed,  then 
place  is  essential  and  should  be  alleged.87  And  where  the  statute 
makes  it  an  offense  to  sell  liquor  within  certain  limits  of  some  in- 
stitution, then  an  allegation  as  to  place  is  essential,  as  when  within 
a  certain  distance  of  a  church,88  or  of  a  college  or  institution  of 
learning,89  or  a  voting  precinct.90  In  case  of  a  sale  within  a  cer- 
tain distance  of  an  academy,  college,  university  or  institute  of 
learning  it  is  sufficient  to  use  the  language  of  the  statute,  giving  the 
name,  if  any,  which  the  institution  is  known  by.91 

§  655.  Averment  as  to  place — description  of  building. 

As  a  general  rule  the  building,  where  the  offense  was  committed 

Texas.— Cochran  v.   State,  26  Tex.  190.3),  76  S.  W.  459. 

678.  87.  Hafter    v.    State,    51     Ala.    37, 

Wisconsin. — State    v.     Hiekok,    90  following    Harris    v.    stale,    ">u    Ala. 

Wis.  Itil,  62  N.  W.  934.  1:27.  and  so  holding  where  the  amount 

85.  Seifried  v.  Commonwealth,  101  of  the  fine  in  case  of  a  conviction  waa 

Pa.  St.  2ti0.  based  on  a  classification  of  cities  and 

•s<5.  Alabama. — Gilmore     v.     State.  towns  according  to  their  population. 

L25    Ala.    59,    28    So.    382;    Block    v.  *s-  Gilmore  \.  State,    125   Ala.   59, 

state.  96    Ua.  493.  28   So.   382;    Block   v.   Stale.   66   Ala. 

Kentucky. — Commonwealth             v.  493. 

Slaughter,  12  Ky.  Law  Rep.  893.  s!»-  Ragan   v.   state.   67   Miss.   332, 

Mississippi.     Ragan    v.     State.    67  7  So.  280.     See  State.v.  Odam,  2  Lea 

Miss.  332,  7   So.  280.  (Tenn.)    220   holding   it    sufficient    to 

New  Jersey. — Kelty  v.  state.  t;i  X.  follow   the    language   of   the    Btatute 

J.  L.  4n7.  39  Ail.  711.  without  naming  the  institution. 

Tennessee. — State  v.   Odam,   2   1     i  9©.  Gage   v.    State    (Tex.   Cr.   App. 

220.  I                    -     W.   459. 

Texas.— Gage    v.    State    (Cr.    App.  M.   Blackwell  v  state.  36  Ark.  178. 


700  INDICTMENTS    AND    INFORMATIONS.  [§    656 

need  not  be  alleged.92  But  where  the  offense  charged  is  the  main- 
taining of  a  nuisance,  it  is  held  that  the  information  should  give  a 
particular  description  of  the  place  where  the  alleged  nuisance  is 
maintained  in  order  to  authorize  proceedings  to  abate  it  upon  a 
conviction.93  But  where  there  is  a  lengthy  and  explicit  descrip- 
tion of  the  place  where  it  is  alleged  a  nuisance  was  maintained, 
an  incorrect  statement  as  to  one  of  the  numerous  particulars  in  the 
description,  which  cannot  possibly  mislead  the  defendant,  nor 
affect  his  interests  prejudicially,  is  not  fatal.94  Where  the  in- 
formation charges  the  maintenance  of  a  nuisance  at  one  specified 
building  it  will  not  be  held  to  mean  two  buildings  not  connected 
though  on  the  same  lot  so  as  to  render  admissible  proof  of  a  nui- 
sance at  the  other  building.95 

§  656.  Charging  time  of  offense — generally. 

The  indictment  must  be  sufficiently  certain  in  charging  the 
offense  and  without  setting  forth  some  time  as  that  of  its  alleged 
commission  there  cannot  be  said  to  be  the  certainty  required.96 

"  While  time  is  not  an  ingredient  of  the  crime  of  unlawfully 
selling  liquors,  except  as  to  prohibited  days  and  hours,  and  when 
alleged  need  not  perhaps  be  proved  exactly  as  alleged,  yet  the  time 
of  the  commission  of  the  offense  should  be  alleged  for  the  purpose 
of  apprising  the  defendant  when  it  is  claimed  he  committed  such 


92.  Iowa—  State  v.  Becker,  20  Iowa  95.  State  v.  Poull,    14  N.  D.  557, 
438.  105  N.  tW.   717. 

Michigan. — People   v.    Aldrich,    104  96.  Indiana. — State    v.    Zeitler,    63 

Mich.  455,  62  N.  W.  570.  Ind.  441. 

Nebraska. — Peterson    v.    State,    64  Massachusetts. — Commonwealth      v. 

875,  90  N.  W.  964.  Adams,  1  Gray  481. 

Veto    York. — Schwab    v.    People,    4  Texas. — Thurman  v.  State,  45  Tex. 

Hun   (N.  Y.)    520.  Cr.  569,  78  S.  W.  937. 

Texas. — Bunch  v.  Republic,   1   Tex.  Vermont. — State  v.  O'Keefe,  41  Vt. 

608.  691  ;  State  v.  Karnedy,  36  Vt.  563. 

93.  State  v.   Poull.    14   N.   D.   557,  West  Virginia.— State  v.  Bruce,  26 
105  X.  W.  717.  W.   Va.   153. 

94.  state  v.  Reno,  41  Kan.  674,  21  See  Joyce  on  Indictments,  §  309. 
Pae.  803. 


§657]  INDICTMENTS    AND    INFORMATIONS.  7m 

crime  in  order  thai  he  may  prepare  his  defense  and  also  that  he 
may  use  it,  as  before  suggested,  as  a  plea  in  bar."  :,T  Where  the  in- 
dictment charges  the  commission  of  the  offense  on  a  certain  day. 
stating  the  month  and  year,  it  is  qoI  defective  because  the  words 
"  in  the  year  of  our  Lord,"  or  the  letters  "  A.D."  are  nol  added.98 
But  a  complaint  alleging  the  time  of  sale  as  "on  or  about"  a 
certain  date  has  been  held  had,  on  a  motion  in  arrest  of  judgment." 

§  657.  Precise  time  not  essential. 

It  is  not  necessary  that  the  precise  time  of  the  commission  of  the 
offense  be  stated,  it  being  sufficient  if  it  is  shown  to  have  been 
within  the  statute  of  limitations,  except  where  time  is  an  indis- 
pensable ingredient  of  the  offense.1  So  in  liquor  prosecutions 
where  time  is  not  of  the  essence  of  the  offense,  the  precise  time  need 
not  be  stated.2  So  under  an  indictment  charging  the  sale  of  liquors 
without  a  license  and  contrary  to  law  where  a  statute  provides 
that  under  such  an  indictment  "  any  act  of  retailing  in  violation 
of  law  may  be  proved,"  time  is  not  essential  and  a  conviction  may 
be  had  if  a  sale  at  any  time  within  the  time  of  the  statute  is 
proved.3 


07.  People  v.  Olmsted,  74  I  Inn  (X. 
Y.)  323,  26  X.  V.  Supp.  818,  per 
Herriek,  J.,  citing  People  v.  Stockbug, 
50  Barb.   (N.   X.)   57:;. 

os.  Commonwealth  v.  Traylor,  22 
K.v.  Law  Rep.  97,  45  S.  W.  356,  450. 

See  .Joyce  on    Indictments,   §    309  n. 

!»:►.  si  ite  v.  O'Keefe,  41  \'t.  691. 

See  Joyce  on  Indictments,  §§  313 
and  314.  as  to  use  of  the  words  "on 
or  about." 

1.  Joyce  on  Indictments,  §  310. 

2.  See  State  v.  Allen.  63  Kan.  59"8, 
66  Pac.  628 ;  People  v.  Polhamus,  8 
App.  Div.  (X.  Y.)  133,  40  X.  Y 
Supp.  401;  Arlington  v.  Common- 
wealth, s:  Va.  96,  12  S.  K.  224 

age    v.    Commonwealth,    si    Ya.    582, 
5  S.  E.  563. 


3.  Olmstead  v.  State.  92  Ala.  64,  9 
So.  737. 

4.  Joyce  on  Indictments,  §  322. 

•"»•  Commonwealth  v.  Gardner,  7 
Gray  (Mass.)  494.  Per  Dewey.  .1.. 
citing  Commonwealth  v.  Elwell,  1 
Gray  (Mass.)  163;  Commonwealth  v. 
Wood.  4  1  .'r.!\    -  Mass.)  11. 

e.  Our  House  No.  2  v.  State,  4 
Greene,  (Iowa)  172:  state  v.  Cofreu, 
48  Me.  4(i4  :  Commonwealth  v.  Man- 
ning, 164  Mass.  .".17.  42  X.  K.  95; 
state  v.   [ngalls,  59  N.   II.  88. 

Where  the  offenses  are  alleged  to 
liave  been  committed  during  a  speci- 
fied period  of  time  H  is  a  general 
rule  that  a  conviction  i>  a  bar  to  a 
subsequenl  prosecution  covering  the 
same  period   for  acts  provable  under 


7()i>  INDICTMENTS    AND    INFORMATIONS.        [§§    (558,059 

§  658.  Offense  consisting  of  succession  of  acts — charging  with  a 
continuando. 
It  may  be  stated  generally  that  where  an  offense  consists  of  a 
succession  of  acts  an  indictment  therefor  may  properly  charge  that 
the  offense  was  committed  on  a  given  day  and  "  on  divers  other 
days  "  between  that  day  and  the  day  of  the  finding  of  the  indict- 
ment.4 In  this  connection  it  is  said  in  an  early  case  in  Massa- 
chusetts :  "  If  this  were  a  mode  of  criminal  pleading,  now  for  the 
first  time  presented  for  the  consideration  of  the  court,  it  would 
certainly  deserve  great  consideration,  whether  it  is  sufficiently 
certain  and  precise  to  satisfy  the  rules  of  law  upon  that  subject. 
But  such  averments  are  allowable  in  many  cases,  and  almost  from 
the  necessity  of  the  case,  as  in  case  of  a  common  barrator,  common 
scold,  common  brothel,  etc.,  and  we  consider  that  this  form  of  in- 
dictment has  long  been  allowed  in  practice  upon  this  and  prior 
analogous  statutes."  5  So  where  an  offense  charged  is  continuous 
as  a  prohibited  traffic  it  may  be  laid  with  a  continuando. Q  And 
where  an  offense  is  so  charged  it  has  been  decided  that  the  defend- 
ant can  only  be  convicted  of  one  offense,  and  that  if  it  is  sought  to 
convict  him  of  more  than  one  violation  the  statement  of  the  cir- 
cumstances of  each  should  be  separately  charged.7 

§  659.  Time  of  essence  of  offense — sale  on  Sundays. 

When  time  is  of  the  essence  of  the  offense,  as  when  the  statute 
prohibits  the  doing  of  an  act  on  certain  days  or  dates,  the  indict- 
ment should  show  that  the  alleged  violation  of  law  was  of  that  day 
or  date.8  Thus  where  the  prosecution  is  for  the  violation  of  a 
statute  prohibiting  the  sale  of  liquor  on  Sunday  the  indictment 
should  bring  the  alleged  offense  within  the  operation  of  the  statute 
by  alleging  that  the  sale  was  made  on  that  day.9     And  it  is  suifi- 

the  first  prosecution.     People  v.  Fol-  8.  Joyce  on  Indictments,  Sec.  312. 

hamus,  8  App.  Div.    (N.  Y.)    133,  40  o.  Robinson  v.  State,  38  Ark.  548; 

N.  Y.  Supp  491.  Kroer  y    pe0pie)  73  ni.  294  ;    Slate  v. 

7.  South  v.  Commonwealth,  79  Ky. 

Heard,  107  La.  GO,  31  So.  384;  Com- 
493. 


s    660]  [NDICTMENTS    AND    INFORMATIO  703 

cient  to  allege  that  the  offense  waa  committed  on  a  Sunday,  the 
particular  hour  on  Sunday  when  it  was  committed  doI  being  neces- 
sary to  allege.10  And  in  this  connection  ii  has  been  decided  .suffi- 
cient to  allege  that  the  violation  took  place  on  some  Sunday,  the 
particular  Sunday  not  being  important.11  Again,  charging  the 
offense  to  have  been  committed  on  a  certain  day  of  a  month  and 
year,  "said  day  being  the  first  day  of  the  week,  commonly  called 
Sunday,"  is  a  proper  allegation  as  to  the  offense  having  been  com- 
mitted on  Sunday.1-  But  under  a  statute  providing  that  saloons 
"  shall  be  closed  on  the  first  day  of  the  week  commonly  called 
Sunday  "  in  charging  the  offense  of  keeping  open  on  Sunday,  it 
is  not  necessary  to  allege  that  the  saloon  was  kept  open  for  the 
purpose  of  doing  a  prohibited  business.13 

§  660.  Sales  on  election  day. 

Where  sales  are  prohibited  on  election  day  the  indictment  should 
contain  an  averment  showing  that  the  sale  was  made  on  such  a 
day,14  and  that  the  election  was  held  by  lawful  authority.15  In 
describing  the  offense  as  committed  on  an  election  day  it  is  essential 
under  some  statutes  to  state  the  object  and  purpose  of  the  elec- 
tion."'' And  in  stating  the  purpose  of  the  election  the  fact  that  all 
the  officers  to  be  elected  were  not  named  in  the  complaint  and  are 
in  the  information  is  no1  a  variance  rendering  the  information 
fective.17     If  it  states  the  purposes  for  which  an  election  was  to  be 


monwealth  v.  McEiernan,   128   Mass.  *-*•  Hewman  v.  State.  101  Ga.  534, 

AU  2S    S.    K.    1005;    Slate    v.    Stanley,    71 

10.  State  v.  Heard,  107  La.  00,  31      x.  C.  202. 

s"-  384.  is.  ,;,.!!,  v.  state,  31   Tex.  Cr.  514, 

ii.  Robinson  v.  State,  38  Ark.  548.      .,,  s_  w    ,,„,.  Jauka  v  St.(t(,i  ._,,,  Tex 
12.  state  v.  Brann,  83  Mo.  180,  fol-       App    .,.,..    ,-  s>  w   sl- 

16.  Borches    v    State,    33    Tex.    Cr. 
96,  -Jr.  s.  W.  423. 


lowing  State  v.  Roehm,  61  Mo.  82, 
which  was  affirmed  in  state  v.  Block, 
61  Mo.  117. 

13.  State   v.    Donaldson,    12    S.   D.  ,T-  Steinberger    v.    State,    35    Tex 

259,  si   N.  W.  299.  Cr.  492,  34  S.  W.  617. 


7(U  INDICTMENTS    AND    INFORMATIONS.  [§    G61 

held  in  the  alternative  and  no  such  election  was  authorized  by 
statute,  it  has  been  held  in  Texas  that  the  information  is  bad.18 

§  661.  Knowledge — intent. 

It  is  a  generally  accepted  rule  that  where  the  statement  of  the 
act  necessarily  includes  a  knowledge  of  the  illegality  of  the  act, 
no  averment  of  knowledge  is  required,  but  where  by  statute  knowl- 
edge is  an  essential  element  of  the  offense  it  is  essential  to  the 
validity  of  an  indictment  that  there  should  be  an  averment  of 
knowledge  therein  in  the  description  of  the  offense.19  Ordinarily 
in  indictments  under  the  liquor  law  an  averment  of  knowledge  is 
not  necessary.20  In  this  connection  in  the  case  of  an  indictment 
for  maintaining  a  liquor  nuisance  the  court  said :  "  If  the  evidence 
should  show  that  they  did  the  acts  charged  they  could  not  avoid 
conviction  by  saying  they  did  not  know  they  were  doing  wrong,  or 
were  ignorant  that  the  tenements  they  kept  and  maintained  under 
such  circumstances  were  common  nuisances.  The  statute  does  not 
require  the  state  to  allege  or  prove  knowledge  of  the  law,  knowl- 
edge on  the  part  of  the  respondents,  nor  their  knowledge  that  the 
acts  and  conditions  charges,  made  their  tenements  common  nui- 
sances. Their  knowledge  of  these  matters  is  presumed.  The  state 
would  not  need  to  prove  their  knowledge  of  the  unlawfulness  of 
their  conduct,  and  hence  the  indictment  need  not  allege  it."  21 
So  where  a  statute  makes  it  an  offense  to  sell  to  minors  and  persons 
of  known  intemperate  habits  it  is  sufficient  to  charge  the  offense 

18.  Renter    v.    State,    43    Tex.    Cr.  Pennsylvania. — Commonwealth       v. 
572,  07  S.  \V.  502.                                            Sellers,   130   Pa.   St.   32,   18   Atl.   541, 

19.  Joyce  on  Indictments,  Sec.  33G       542. 

and  337.  Rhode  Island. — State  v.   McGough, 

20.  Indiana. — Struble    v.    Xodwift,       14  R.  I.  63. 

11  Ind.  64.  Texas.— Jones  v  State,  4G  Tex.  Cr. 

Kentucky.— Hinkle      v.      Common-  517,  81  S.  W.  49. 

wealth,  25  Ky.  L.  Rep.  313,  75  S.  W.  Vermont. — State    v.    Benjamin,    29 

231.  Vt.  101. 

Maine. — State    v.    Stanley,    84   Me.  21.  State  v.  Ryan,  81  Me.  107,  16 

555,  24  Atl.  983.  Atl.  400.     Per  Emery,  J. 


§   (j<;L>J  INDICTMENTS    AND    [NFORMATIO  705 

in  substantially  the  language  of  the  act,  the  words  "knowingly 
and  wilfully"  being  unnecessary."  And  where  a  statute  made  it 
an  offense  to  sell  intoxicating  liquors  contrary  to  its  provisions  it 
was  decided  that  as  the  statute  did  doI  use  the  word  u  wilfully" 
an  indictment  need  not  charge  that  sales  were  "  wilfully  "  made.23 
Again  though  the  statute  made  it  an  offense  to  sell  liquor  "  if  in- 
tended to  be  drank  "  on  the  premises  an  allegation  of  a  sale  of 
liquor  "to  be  drank"  was  held  sufficient,  it  being  declared  that 
the  words  "  to  be  drank  "  meant  the  same  as  "  with  the  intent  "  to 
be  drank."  25  Again,  the  unlawful  intent  with  which  intoxicating 
liquors  are  kept  may  be  presumed  by  the  recent  prior  sale  by  the 
defendant  of  the  same  kind  of  liquors  in  violation  of  law.26 
Where  knowledge  of  the  minority  of  the  purchaser  is  essential  it 
has  been  held  to  be  sufficient  to  allege  that  the  defendant  did  then 
and  there  unlawfully  and  knowingly  sell  intoxicating  liquors  to  a 
minor.27 

§  662.  General  rule  as  to  charging  in  language  of  statute. 

It  may  be  stated  generally  that  it  is  ordinarily  sufficient  for  an 
indictment  or  information  to  charge  a  statutory  offense  in  the 
language  of  the  statute  where  by  so  doing  the  accused  is  suffi- 
ciently apprised  of  the  nature  and  cause  of  the  accusation  against 
him.28  And  this  doctrine  is  applicable  in  charging  violations  of 
the  liquor  law.29     So  in  the  case  of  an  indictment  for  maintaining 

22.  Commonwealth    v    Sellers,    130  26.  Hans    v.    State,    50    Neb.    150, 

Pa.  St.  32,  18  All.  541,  542.  6!)   N-   W.   838- 

24.  State  v.  Abbott,  31    N.  II.  434.  .,_    T  c.    .       Ar    „        n 

2-.  .Toms    v.    State,    4G    Tex.    Cr. 

25.  Bilbro     v.     State,     7     Humph.       -,-    q,    «    ...     ,() 

(Tenn.)  534. 

.         ,,       . .        ,,    ,     ,  -     ,     ,    j.j  28.  Joyce     on     Indictments,     Sec. 

An    allegation    that    defendant    did 

37]    372 
"keep  for  Bale  one  pint  <>f  cider  '  was 

held  equivalent,  to  an  allegation  that  21K  Indiana— State  v.   Hoard,   123 

he  kepi  one  pinl  of  cider  with  intent  II"1     '■'•'■    '"•    x     |:-    972;    skinner   v. 

to    sell    the   same,    it    being   declared  State,   120  [nd.  1-27.  22  N.  E.  115. 

unnecessary  to  further  allege  the  in-  Iowa. — Zumhoff    v.    State,  4  Greene 

tent.    State  v.  Prescott,  67  N.  H.  203,  526;    Our    House   No.   2   v.   State,   4 

30  Atl.  342.  G   Greene,    172. 


TUG 


INDICTMENTS    AND    INFORMATIONS. 


[§  662 


a  liquor  nuisance  it  is  sufficient  to  charge  it  in  the  language  of  the 
statute  creating  the  offense,30  as  is  also  the  case  in  charging  an 
unlawful  sale  of  liquor,31  or  the  keeping  of  a  place  where  liquors 
are  unlawfully  sold  or  kej^t.32  So  an  information  for  keeping  a 
place  where  intoxicating  liquors  are  sold  in  violation  of  law  is 
sufficient  if  it  states  the  offense  in  the  language  of  the  statute.33 
And  where  by  statute  it  was  made  an  offense  to  sell  in  a  local 
option  county  "  alcoholic,  spirituous,  malt  or  intoxicating  liquors 
or  other  drinks  which  if  drunk  to  excess  will  produce  intoxication," 
an  accusation  following  substantially  this  language  was  held  suffi- 
cient, it  not  being  necessary  to  specify  the  particular  kind  of 
liquor.34  Again,  this  rule  as  following  substantially  the  language 
of  the  statute  also  applies  in  the  case  of  a  prosecution  under  a  town 
ordinance.35  And  in  an  information  charging  a  statutory  crime, 
a  negative  averment  may  be  in  the  words  of  the  statute  or  in  words 
of  equivalent  meaning.56  And  substantial  compliance  with  the 
statute  being  sufficient  and  the  fact  that  the  indictment  may  be 


Kansas. — State  v.  Looker,  54 
Kan.    227,    38    Pac.    288. 

Michigan. — People  v.  Telford,  56 
Mich.   541,  23  N.   W.  213. 

Minnesota. — Mankato,  City  of,  v. 
Arnold,  36  Minn.  62,  3J  N.  W.  305. 

Missouri. — City  of,  Louisiana,  t. 
Anderson,  100  Mo.  App.  341,  73  S. 
W.    875. 

Nebraska. — Peterson  v.  State,  64 
Neb.  875,  90  N.  W.  964. 

Texas. — Eisner  v.  State,  30  Tex. 
524;  Burch  v.  Republic,  1  Tex.  008; 
Jelinek  v.  State  (Tex.  Civ.  App. 
1908  i,   115  S.  W.  908. 

Wiscinsin. — Boldt  v.  State,  72 
Wis.  7.  38  X.  \V.  177. 

30.  Commonwealth  v.  Ferden, 
141  Mass.  28,  6  X.  E.  239;  Com- 
monwealth   v.   Ryan,    136   Mass.   436. 

31.  Cost  v.  State,  96  Ala.  60,  11 
So.  435;  Roberts  v.  State  20  Fla. 
300,    7    So.   861;    State   v.   Cottle,    15 


Me.  473;  People  v.  Paquin,  74  Mich. 
34,  41   N.  W.  852. 

32.  Arkansas. — State  v.  Adams, 
16  Ark.  407. 

Connecticut. — Rawson  v.  State,  19 
Conn.  292;  Barth  v.  State,  18  Conn. 
432. 

Indiana. — State  v.  Hoard,  123  Ind. 
34,  23  N.  E.  972. 

Iowa. — State  v.  Price,  75  Iowa 
243,  39  X.  W.  291. 

Rhode  Island. — State  v.  McGough, 
14  R.  I.  63. 

33.  Anderson  v.  Van  Buren  Cir- 
cuit Judge,  130  Mich.  697,  90  N.  W. 
692. 

34.  Maddox  v.  State,  118  Ga.  32, 
44  S.  E.  806. 

35.  Woods  v.  Town  of  Pineville, 
19  Oreg.  108,  23  Pac.  880. 

36.  State  v.  Scampini,  77  Vt.  92, 59 
Atl.  201. 


§  (;(i3]  [NDICTMENTS    AND    [NFORMATIONS.  707 

defective  in  matters  of  form  will  qoI  vitiate  it  where  such  defi 
cannot  prejudice  the  rights  of  the  accused.3' 

§  663.  Exceptions  in  statute— rule  as  to. 

The  general  rule  as  to  negativing  an  exception  in  charging  a 
statutory  offense  is  that  where  the  subject  of  any  exception  is  found 
in  the  enacting  or  prohibitory  clause,  it  must  be  included  by  aver- 
ment in  the  pleading,  but  if  it  is  found  in  a  separate  substantive 
clause  or  in  a  subsequent  statute,  and  is  not  an  essential  part  of 
the  description  of  the  offense  it  is  a  matter  of  defense  and  need 
not  be  negatived.38  So  it  is  said :  "  It  is  a  rule  in  both  civil  and 
criminal  pleadings  that,  where  an  action  is  predicated  upon  a 
statute  to  which  there  is  an  exception  or  proviso,  it  is  sufficient 
for  the  pleader  to  state  only  so  much  as  will  make  out  a  prima  facie 
case ;  and,  if  the  proviso  or  exception  be  found  in  a  separate  section 
or  in  a  subsequent  substantive  enactment,  it  is  a  defense  and  should 
be  left  to  the  other  party;  but  if  it  be  matter  of  exception  con- 
tained in  the  enacting  or  prohibiting  clause,  it  is  a  part  of  the  thing 
prohibited,  and  the  recording  must  show  that  this  matter  of  ex- 
ception does  not  cover  the  act  complained  of."  39  Indictments 
under  the  liquor  laws  are  subject  to  this  general  rule.40     In  such  a 

*7.  Zumhoff  v.  State,  4  G.  Greene  Indiana. — Kuiser   v.    State,   9    Ind. 

(Iowa)    526.  543. 

88.  Joyce   on    Indictments,    §    390.  Iowa. — State  v.  Van  Vlict,  92  Iowa 

»».  State   v.    Van    Vlict.    92    Iowa,  475,   61   X.   W.   241,   State  v.   Curley, 

476,61   N.  W.  241.     Per  Deemer,  J.,  33  i,ma,   359. 

40.  Alabama. — Carson  v.  State,  G9  Maine. — State     v.     Keen,     34     Me. 

Ala.  235.  500. 

Arkansas.— State     v.     Mnllins,     67  Maryland.— Bode    v.    State,    7    Gill 

Ark.  422.  55  S.  W.  211.  ...Ji; 

Connecticut. — State  v.   Wadsworth, 
30   Conn.   55. 

Florida. — Beaumel     v.     State,     26 

I'll    "1    7  So   371  v'  w     Hampshire. — State     v.     Mc 

Geor^a._Tigner    v.    State,119Ga.  Glynn,  34  X.  II.  422:  state  v.  Abbott, 

114,  45  S.  E.  1001.  :!1    N'-   H-  434- 

Illinois.— Mitzker  v.  Teople,  14  111.  S '■  0     York.— Jefferson     v.     People 

101.  101  X.  Y.  19,  3  X.  E.  797. 


Missouri.— State  v.  Buford.  10  Mo. 
03. 


70S  INDICTMENTS    AND    INFORMATIONS.  [§    664 

case  an  unnecessary  allegation  negativing  an  exception  need  not 
be  proved  but  will  be  treated  as  surplusage.41 


§  664.  Exceptions  in  statute — application  of  rule. 

This  rule  has  been  applied  in  the  case  of  exceptions  as  to  drug- 
gists,42 manufacturers  of  wines  from  grapes  grown  by  them,43  sales 
for  particular  purposes,  such  as  for  sacramental,  mechanical, 
chemical,  medicinal  or  culinary  purposes,44  and  in  the  case  of  ex- 
ception as  to  persons  appointed  as  town  or  city  agents  to  sell  for 
certain  purposes.45  So  an  indictment  under  an  intoxicating  liquor 
law  making  it  a  misdemeanor  to  have  open  or  unlocked  any  door 
"  to  the  room  where  any  liquors  are  sold  or  kept  for  sale  during  the 
hours  when  the  sale  of  liquors  is  forbidden,  except  where  necessary 
for  the  egress  or  ingress  of  the  person  holding  the  liquor  tax  certifi- 
cate authorizing  the  traffic  in  liquors  at  such  place,  or  members  of 
his  family,  or  his  servants,  for  purpose  not  forbidden  by  this  act," 
should  negative  the  exception  in  the  statute  as  to  the  necessity  of 
having  such  a  door  open  or  unlocked.46 


Virginia. — Commonwealth    v.    Hill,  43.  State  v.  Mullins,  67  Ark.  422, 

5  Gratt  682.  55  S.  W.  211. 

Ordinarily  exceptions  in  the  opera-  44.  Brutton  v.  State,  4  Ind.  601. 
tion  of  a  law  need  not  be  negatived  Where  a  statute  provided  for  a 
in  an  indictment  unless  the  exception  license  "  to  sell  wine  and  spirit- 
be  made  in  the  very  act  defining  its  uous  liquors,  for  medicinal,  mechan- 
offense.  Jelinek  v.  State  (Tex.  Civ.  ical  and  chemical  purposes,  and  for 
App.  1908),  115  S.  W.  908.  no  other  use  or  purpose"  an  indict- 

41.  Tigner   v.    State,    119   Ga.    114,  ment    was    held    bad    which    alleged 
45  S.  E.   1001.  that  the  defendant,  being  licensed  to 

42.  Baeumel  v.  State,  26  Fla.  71,  ?  sell    for   these    specific   purposes,    did 
So.  371;   State  v.  Jques,  68  Mo.  260.  unlawfully  sell  one  gallon  of   spirit 

Where    a    statute    creating    an    of-  uous  liquors,  contrary  to  the  form  of 

fense     makes     an     exception     to     its  the  statute,  but  did  not  aver  that  the 

operation,     as    where    druggists    are  sale  was  not  for  medicinal,  mechan- 

excepted,      a     complaint     thereunder  ical   or  chemical   purposes.     State  v. 

should    show    that    the    accused    does  Abbott,   31   N.   H.  434. 

not    fall   within   its   operation.      Peo-  45.  State  v.   Keen,   34  Me.   500. 

pie  v.   Telford,   56   Mich.   541,   23   N.  46.  People  v.   Lupton,   52  Misc.  R. 

W.  213.  (N.  Y.)    336,  103  N.  Y.  Supp.  172. 


88  665,666]       [NDICTMENTS    AND    INFORMATIONS.  711!) 

§  665.  Duplicity. 

It  is  a  general  rule  of  criminal  pleading  that  the  charge  again-r 
the  accused  must  not  be  stated  in  such  a  manner  as  to  render  the 
indictment  subject  to  the  objection  of  duplicity  which  it  said  to 
be  fault  in  all  pleading  in  that  it  tends  to  confusion  and  the  mul- 
tiplication of  issues.47  This  general  rule  is  applied  to  indictments 
for  a  violation  of  the  liquor  law.48  So  where  a  statute  makes  it 
unlawful  to  sell  in  less  quantities  than  one  gallon  and  also  declares 
it  unlawful  for  the  person  selling  to  suffer  the  same  to  be  drank  in 
and  about  the  house,  a  count  in  an  indictment  charging  that  the 
defendant  sold  in  less  quantities  than  one  gallon  and  suffered  the 
same  to  be  drank  in  his  house  is  bad  for  duplicity.49  And  an  in- 
formation charging  the  respondent  in  the  same  count  with  a  sale 
of  liquor  to  a  specified  person,  and  with  keeping  a  saloon  where 
intoxicating  liquors  are  sold  and  furnished  as  a  beverage  in  viola- 
tion of  the  provisions  of  the  local  option  law  is  bad  for  duplicity.50 
§  666.  Indictments  not  duplicitions. 

Where  an  offense  consists  of  several  distinct  acts,  which  are  in 
fact  to  be  construed  when  taken  together  as  one  continuous  act,  such 
acts  may  be  charged  in  an  indictment  without  rendering  it  duplici- 
tous.54     And  a  count  in  such  an  indictment  charging  the  sale  of 

47.  Joyce  on  Indictments,  §  392.  Nebraska.— State  v.   Ball,   27   Neb. 

is.  Indiana.— Henry   v.   State,   113  (501,  43  N.  W.  398. 

Ind.  304,  15  N.  E.  593.  Ohio.— State    v.    Conner,    30    Ohio 

Ioica. — State  v.   Schnler,   100  Iowa  st    4(1- 

111,  80  N.  W.  213.  '         '  . 

'    .  _,    .  _  -_  „      _._  South     (  urolina. — State     v.     Beck- 

" 7M:;  «'  V"  n      v  'oge,  *»  &  C.  484,  27   S.  E.  658. 

Massachusetts.— Commonwe&lth     v. 

,™     r.o    m     t^     oon  Tennessee. — Webb  v.    State,    11    La. 

l£o,    158   Mass.   199,   33   N.    E.    339  j 

Commonwealth    v.   Dolan,    121    Mass.  662- 

374;    Commonwealth   v.    Curran,    119  Virginia. — Mbrganstern      v.      Coin- 
Mass.  206.                                                     owealth,  94  Va.  787,  26  S.  E.  402. 

Michigan. — People   v.    Aldrich,    104  4».  Miller  v.  State,  5  How  (Miss.) 

Mich.  455,  62   N.  W.  570;    People  v.  250. 

Wade,  101  Mich.  89,  59  X.  W.   138.  so.  Peoplt>  v    K(V])01.    9?  ^  L-, 

Montana. — State     v.      Marion.      14 

Mont.  458,  36  Pac.   1044.  followed  in  56  •          •       5- 

State  v.  MeGinnis,  n   Mont  462,  3G  51"  Commonwealth    v.    Dunn.    Ill 

Pac.  1046.  Mass.   126. 


710  INDICTMENTS    AND    INFORMATIONS.  [§    666 

divers  quantities  of  different  sorts  of  liquors,  to  divers  citizens  of 
the  State  and  to  divers  persons  unknown,  cannot  be  objected  to  on 
error  as  a  count  embracing  more  than  one  offense ;  the  whole  will 
be  deemed  a  single  transaction.52     And  an  information  charging 
that  defendant  "  did  unlawfully  sell  beer  to  persons  unknown," 
was  held  in  effect  to  charge  one  sale  to  several  persons  jointly,  and 
hence  not  to  be  bad  for  duplicity  under  an  ordinance  making  each 
separate  act  of  selling  an  offense.53     An  indictment  may  also  in 
different  counts  charge  the  same  offense  as  committed  in  different 
ways  and  not  be  subject  to  the  objection  that  it  charges  different 
offenses.54     So  where  the  indictment  charged  the  defendant  in  one 
count  with  violating  the  sabbath  by  selling  whisky  and  in  another 
with  selling  alcohol  on  the  same  day,  it  was  decided  that  it  charged 
but  one  offense  committed  in  two  different  modes.55     And  where  a 
nuisance  may  be  committed  by  any  one  of  several  unlawful  acts 
an  indictment  is  held  not  to  be  bad  for  duplicity  in  charging  the 
offense  to  have  been  committed  by  more  than  one  of  such  acts.56 
Again,  where  an  indictment  charged  the  defendant  with  but  one 
unlawful  sale  of  intoxicating  liquor  to  be  drunk  on  the  premises 
where  sold,  it  was  held  not  to  be  bad  for  duplicity  merely  because 
of  uncertainty  in  the  description  of  such  premises  as  "  the  house, 
outhouse,  yard;  garden  and  the  appurtenances  thereunto  belong- 
ing "  of  the  defendant.57     And  under  a  statute  providing  that  all 
saloons,  restaurants,  bars  in  hotels  or  elsewhere,  and  all  places  ex- 
cept drug  stores  where  any  of  the  liquors  mentioned  in  the  act  are 
sold  or  kept  for  sale  shall  not  be  open  on  Sunday,  an  information 
charging  defendant  with  keeping  open  his  "  saloon  and  bar  "  on 
Sunday,  in  violation  of  the  statute,  such  "  saloon  and  bar  "  being  a 


r,2.   People    v.    Adams,     17    Wend.  55.  Bridges  v.  State,  37  Ark.  224. 

(X.  Y. )   47.">.  see  also  Stoss  v.  State,  56.  State   v.    Baughman,    20    Iowa, 

:;  Mo.  '•»:    Endleman  v.  United  States,  497.     See  also  State  v.  Lang,  03  Mo. 

86   Fed.  R.  450.  215. 

53.  State  v.   King,  37  Iowa  402.  67.  Stout  v.  State,  93  Ind.  150. 

54.  Pope  v.  People,  20  111.  App.  44. 


§  667] 


IXDKTMKXTS    AND    IXF(  ULMATIOXS. 


711 


place  where  the  liquors  mentioned  in  the  statute  arc  sold,  is  not 
objectionable  as  charging  more  than  one  offense.68 

§  667.  Joinder  of  offenses. 

In  determining  what  offenses  may  be  charged,  it  has  been 
decided  that  kindred  offenses  which  are  generic  in  kind  growing 
out  of  the  same  act  may  be  charged  in  the  same  indictment  pro- 
vided they  be  incorporated  in  separate  counts.  And  different  of- 
fenses may  be  joined  in  the  same  indictment  in  different  counts, 
if  the  offenses  are  subject  to  the  same  punishment.  So  it  is  a  gen- 
erally accepted  rule  that  two  offenses,  committed  by  the  same  per- 
son, may  be  included  in  the  same  indictment,  in  different  counts, 
where  they  are  of  the  same  general  nature,  and  belong  to  the  same 
family  of  crime  and  where  the  mode  of  bail  and  nature  of  the  pun- 
ishment, are  also  the  same,  although  they  may  be  punishable  with 
different  degrees  of  severity.59  Offenses  may  be  so  charged  in 
prosecution  for  violation  of  the  law  as  to  intoxicating  liquors.90 
Where  offenses  are  so  charged  in  separate  counts  it  has  been  de- 
cided that  the  trial  court  may  in  its  discretion  grant  an  application 
that  the  state  elect  on  which  count  it  will  proceed.61  And  a  ruling 
denying  such  a  motion  is  held  to  be  reviewable  without  being  as- 
signed as  error  on  a  motion  for  a  new  trial.62 


68.  State  v.  Donaldson,  12  S.  D. 
-1  X.  \Y.  299. 

59.  Joyce    on    Indictments,    §    394. 

CO.  Georgia. — Williams  v.  State, 
107  Ga.  693,  33  S.  E.  641. 

Iowa. — State  v.  Ruferty,  70  Iowa 
160,  30  X.  W.  391,  following  State 
v.  Howorth,  70  Iowa.  157,  30  N.  W. 
389;   Walter-;  v.  State,  5  Iowa  507. 

Kansas. — State  v.  McLaughlin, 
47  Kan.  1  13,  27  Pac.  840. 

Maryland. — State   v.    Blakeney,    96 


Md.  711,  54  Atl.  614. 

Nebraska. — Hans  v.  State,  50 
Neb.  150,  69  X.  W.  838. 

Tennessee. — Tilbery  v.  State.  10 
Lea  35. 

Virginia. — Peer's  Case,  5  Gratt. 
674. 

61.  State  v.  Blakeney.  96  Md.  711. 
54   Atl.  614. 

62.  Hans  v.  State,  50  Neb.  150,  69 
X.   W.   83S. 


712  EVIDENCE.  [§   668 


CHAPTEK  XXV. 

EVIDENCE. 

Section  668.  Burden  of  proof  generally. 

669.  Writings,  documents  and  records  as  evidence. 

670.  Evidence  as  to  license. 

671.  Circumstantial  evidence. 

672.  Circumstantial  evidence  continued. 

673.  Whether  liquor  intoxicating — burden  of  proof, 

674.  Whether  liquor  intoxicating — evidence  as  to. 

675.  Evidence  as  to  kind  of  liquor. 

676.  Evidence  as  to  place. 

677.  Evidence  as  to  time. 

678.  Sales   on    Sunday. 

679.  Evidence  as  to  keeping  open  on  Sunday. 

680.  Intent,  knowledge  or  good  faith  on  part  of  defendant. 

681.  As  to  keeping  place  for  unlawful   selling — liquor  nuisance. 

682.  As  to  liquor  kept  for  unlawful  sale. 

683.  License  from  United   States. 

684.  As  to  sales  to  prohibited  classes. 

685.  Burden  of  proof — defenses. 

6S0.  Burden  of  proof — license  or  authority  to  sell. 

087.  As  to  violation  of  instructions  by  agent. 

688.     Sale  by  an  agent — evidence  showing  may  be  sufficient. 

§  668.  Burden  of  proof  generally. 

It  is  incumbent  upon  the  prosecution  to  introduce  evidence  to 
show  that  the  defendant  has  committed  the  offense  charged  against 
him.1     So  where  it  is  alleged  that  the  defendant  was  not  a  person 

1.  Henry  v.  State,  01  Ark.  490,  45  Cr.     App.     56,    44     S.    W.    67,     109, 

S.     W.     499:     State    v.    Findley,    45  Gaioechio  v.   State.  9  Tex.  App.   387. 

Iowa  435:    Cheadle  v.   State,   4   Ohio  See  also   cases  cited   in   subsequent 

St.    477 :    Benson    v.    State,    39    Tex.  sections  in  this  chapter. 


§  009]  EVIDENCE.  713 

"  lawfully  and  in  good  faith  engaged  in  the  business  of  a  druggisl  " 

it  is  incumbent  upon  the  .state  to  prove  such  allegation.2  And 
where  the  statute  prohibits  a  sale  by  a  licensed  dramship  keeper 
on  a  Sunday,  the  state  has  the  burden  of  showing  that  a  defendant 
indicted  under  such  a  statute  was  a  Licensed  dramshop  keeper.3 
But  it  has  been  decided  that  the  state  is  not  required  to  prove 
negative  allegations  because  if  the  defendant  comes  within  an 
exception  or  proviso  he  has  the  means  in  his  power  to  show  it, 
whereas  if  this  character  of  proof  were  required  of  the  state  great 
inconvenience  would  follow.4 

§  669.  Writings,  documents  and  records  as  evidence. 

In  a  prosecution  for  violation  of  the  law  in  making  prohibited 
sales  applications  for  liquor  are  admissible  in  evidence  against  a 
defendant.5  And  by  Code  in  Iowa  the  written  request  for  liquors 
is  admissible  in  evidence  in  a  prosecution  against  a  pharmacist  for 
unlawful  sales.6  And  upon  the  question  of  illegal  sales  by  a  phar- 
macist, reports  of  sales  made  by  him  are  admissible  in  evidence 
against  him.7  And  evidence  is  admissible  of  the  contents  of  a 
record  which  such  a  person  is  required  by  law  to  keep.8  So  a  police 
officer  who  has  inspected  a  register  which  a  druggist  is  required 
by  law  to  keep  for  the  purpose  of  recording  sales  of  liquor  made 
by  him  may  testify  as  to  entries  therein  which  he  observed  on  an 
inspection  of  the  same.3  Again,  an  examined  copy  from  the  bo 
of  a  collector  of  internal  revenue  showing  the  payment  of  the 

-'.  State   v.    Tanner,    50   Kan.    305,  c.  State  v.  Gregory,  110  Iowa  024, 

31  Pac.   1096.  82   .V.  W.  335. 

8.   Stair    v.     Kurtz,    64     Mo.    App.  gee    a]g(>    g^    y>    Th  on>    74 

L23 

V     ,     ,  0.    .        ,„    rr  .  Iowa,  119,  37  N.  W.  104. 

4.  Archer    v.    State,    10    Tex.    App. 

4S;._>  7.  State    v.     Thompson,    74    Iowa 

">•  Stat,-  v.  Huff,  70   [owa   2(10,  40  119,  37  X.  \V.  104. 

X.    \V.    720:    State    v.    Cummins,    70  s.  stale  v.  Shelton,   16  Wash.   590, 

[owa    133,    40   N.    W.    121:    state   v.  |S   pa<j   258   4g  ]);((.    1064 
Smith.  7t   Iowa   580,   38  X.  W.  402: 
State  v.  Elliott,  45  Kan.  525,  26  Pac. 


9.  Commonwealth    v.    Stevens.    15? 


55.  .  Mass.  2"1.  20  N.  E.  508. 


7U  EVIDENCE.  [§   G70 

revenue  tax  by  him  is  properly  admissible.10  But  records  of 
assessors  of  taxes  are  not  admissible  in  behalf  of  a  defendant  to 
show  that  he  was  not  occupying  the  building  or  maintaining  a 
business  there.11  And  a  receipt  for  a  license  tax  cannot  have  a 
retroactive  effect  and  is  not  admissible  to  show  a  sale  prior  to  the 
date  of  its  issuance.12 

§  670.  Evidence  as  to  license. 

The  fact  of  the  granting  of  a  license  may  be  shown  by  the  record 
of  the  court  which  granted  it.13  And  public  records  of  licenses 
are  held  to  be  competent  evidence  of  all  matter  contained  therein.14 
The  fact  that  no  license  has  been  issued  to  a  defendant  may  be 
proved  either  by  the  record  kept  of  licenses  issued  or  by  the  testi- 
mony of  an  official  whose  duty  it  is  to  write  up  the  record.15  So  a 
probate  judge  may  testify  that  he  has  all  the  records  of  his  office 
and  that  no  permit  has  ever  been  granted  to  the  defendant.16 
Upon  the  question  of  the  delivery  of  a  license  the  license  itself  is 
the  best  evidence  and  should  be  produced  or  its  non-production 
accounted  for.17  And  a  licensee  will  not  be  permitted  to  introduce 
evidence  to  contradict  the  terms  of  his  license.18  And  where  a 
license  has  been  issued  by  competent  authority,  the  state  will  not 
be  allowed  to  show  that  it  was  no  protection  to  the  defendant  owing 

10.  Lucio    v.    State,    35    Tex.    Cr.  Paquin,  74  Mich.  34,  41  N.  W.  852. 
320,  33  S.  W.  358.  16>  State  v.  Schmidt,  34  Kan.  399, 

11.  State  v.  Beaumer,  87  Me.  8  Pac.  867;  State  v.  Schweiter,  27 
214,  32  Atl.  881.  Kan.  499. 

12.  United  States  v.  Angell,  11  17.  State  v.  Barnett,  110  Mo.  App. 
Fed.   34.  592,  85   S.  W.  G13. 

13.  State  v.  Barnett,  110  Mo.  App.  See  Jordan  v.  Nicolin,  84  Minn. 
592,  85  S.  W.  G13.  370,  87  N.  W.  910. 

14.  State  v.  Peterson,  38  Minn.  A  license  to  make  one  class  of 
143,  36  N.  W.  443,  followed  in  State  sales  is  not  admissible  in  evidence  in 
v.  Sannerud,  3S  Minn.  229,  36  N.  W.  behalf  of  a  defendant  for  making 
447;  State  v.  Olson,  38  Minn.  150,  sales  not  covered  by  his  license. 
36  X.  W.    UQ.  Lucio  v.   State,   35  Tex.  Cr.   320,   33 

15.  Mayson  v.  City  of  Atlanta,  7?  S.  W.  358. 

Ga.  662.     See  also  State  v.  Schmidt,  ls«  Commonwealth   v.   Rourke,   141 

34  Kan.  399,  8  Pac.  867.     People  v.      Mass.  321,  6  N.  E.  383. 


§  071] 


EVIDENCE. 


715 


to  some  irregularity  in  connection  with  the  preliminaries  to  its 

19 


issuance.' 


§  671.  Circumstantial  evidence. 

Direct  proof  of  a  violation  of  the  law  is  not  in  all  cases  essential, 
but  circumstantial  evidence  is  in  many  cases  sufficient  to  procure 
a  conviction.20  So  it  is  proper  to  show  the  manner  in  which  the 
place  was  fitted  up  and  the  presence  of  a  bar,  glasses,  and  bottles 
upon  the  premises.21  And  it  may  be  shown  that  on  several  occa- 
sions intoxicating  liquors  had  been  consigned  to  the  defendant.22 
So  it  was  held  proper  to  admit  the  testimony  of  railroad  and 
transfer  agents  that  during  the  period  in  which  a  defendant  was 
charged  with  carrying  on  the  business  of  a  liquor  dealer  without 
a  license  they  at  different  times  received  and  delivered  to  him  large 
quantities  of  intoxicating  liquors,  consigned  to  him.23  And  a  bill 
from  a  wholesale  dealer  for  goods  shipped  to  the  defendant  may  be 
admitted  in  evidence.24 


l».  State  v.  Evans,  83  Mo.  319. 

20.  Iowa. — State  v.  Wambold,  74 
Iowa  605,  38  N.  W.  429 

Kansas. — State  v.  Schoenthaler,  63 
Kan.    148,   05   Pac.   235. 

Nebraska. — McManigal  v.  Seaton, 
23  Neb.  549,  37  N.  W.  271. 

New  York, — People  v.  Hulbut,  4 
Den.  133,  47  Am.  Dec.  244. 

Oklahoma. — Utsler  v.  Territory.  10 
Okla.    163,   62   Pac.  287. 

is.— Pike  v.  State,  40  Tex.  Cr. 
App.  613,  51  S.  W.  395. 

21.  Ioica. — State  v.  Wambold,  74 
Iowa  605,  38  X.  W.  429. 

Maine. — State  v.  Burroughs,  72 
Me.  479. 

Massach  usetts. — Commonwealth  v. 
Lufkin.  167  Mass.  553,  16  X.  E.  109: 
Commonwealth  v.  Collier,  134  Mass. 
203. 

Michigan. — People     v.     Hicks,     79 


Mich.  457,  44  N.  W.  931. 

Missouri. — Kirkiwood      v.      Anten 
reith,   11   Mo.  App.  515. 

New  Hampshire. — State  v.  Har- 
rington, 69  N.  H.  496,  45  Atl.  404. 

New  York. — People  v.  Hulbut,  4 
Den.  133.  47  Am.  Dec.  244. 

22.  Alabama. — Mcintosh  v.  State, 
140  Ala.  137,  37  So.  223. 

Arhnasas. — Hanlon  v.  State,  51 
Ark.  186,  10  S.  W.  265. 

Indiana. — Klepfer  v.  State,  121 
Ind.  491,  23  \'.   E.  287. 

Massachusetts. — Commonwealth  t. 
Neylon,  159  Mass.  541,  34  N.  E. 
1078. 

Vermont.— State  v.  Killing,  63  Vt, 
636,  22   Atl.  013. 

28.  Hanlon  v.  State.  51  Ark.  186, 
10  S.  W.  265. 

-»•  Commonwealth  v.  Neylon,  159 
Mass.  541,  34  N.  E.  1078. 


7i(j  EVIDENCE.  [§§  672,673 

§  672.  Circumstantial  evidence  continued. 

Evidence  of  the  finding  of  liquor  in  the  possession  of  the  accused 
is  also  admissible  in  this  connection  and  is  by  statute  in  some  states 
made  prima  facie  evidence  of  guilt  when  found  under  certain 
circumstances.25  And  a  statute  so  providing  is  constitutional.26 
And  it  is  also  proper  to  show  that  persons  were  seen  to  enter  de- 
fendant's place  sober  and  afterwards  to  come  out  in  an  intoxicated 
condition,27  or  that  they  entered  in  a  quiet  and  orderly  manner 
and  left  in  a  disorderly  manner,  making  noise  and  disturbance  or 
using  profane  language,27  or  that  the  place  was  frequented  by  an 
unusual  number  of  people.29  And  it  has  been  held  admissible 
to  show  the  habits  of  the  buyer  as  to  the  use  by  him  of  intoxicating 
liquors,  on  a  prosecution  for  maintaining  a  liquor  nuisance.30 
And  evidence  of  efforts  to  conceal  liquor  on  the  approach  of  an 
officer  may  also  be  introduced.31 

§  673.  Whether  liquor  intoxicating— burden  of  proof. 

Where  the  indictment  charges  a  defendant  with  the  sale  of  in- 
toxicating liquors  it  is  incumbent  upon  the  state  to  either  prove 
that  the  liquor  in  question  was  one  of  the  class  defined  by  statute 
to  be  intoxicating  or  where  there  is  no  such  statutory  definition 

25.  Connecticut.— State      v.      Cun-  Durfee  v.  State,  53  Neb.  214,  73  N. 

ninjrham,  25  Conn.   195.  W.   076. 

Georgia.— Cole    v.    State,    120    Ga.  Vermont. -Lincoln     v.     Smith,     27 

485,  48  S.  E.  156.  vt-  328- 


Iowa.— State   v.    Wright,    98    Iowa 
702,  68  N.  W.  440. 


26.  State  v.  Cunningham,  25  Conn. 
195;  State  v.  Sheppard,  64  Kan.  451, 
67    Pac.    870;    Parsons    v.    State,    61 
Kansas.— State    v.     Sheppard,     64      Neb   244   g5  N  w   65 

Kan.  451,   67   Pac.  870.  s7.  Michigan.— People     v.     Barry, 

Massachusetts. — Commonwealth     r.  ^  Mich.  256    65  N.  W.  98. 

Foster,   182   Mass.  276,  65  N.  E.  391.  2S#  gtate  v'  MarchbankSj  61   S.  C. 

Commonwealth   v.   Lufkin,   107   Mass  ,»    ^  g    g    jgy 

553,  46  N.  E.  109.  29.  State   v.    Pratt,    34   Vt.    323. 

Minnesota. — State     v.     Lewis,     86  30.  Smith    v.   McConnell,    90   Iowa 

Minn.  174,  90  N.  W.  318.  197,  57  N.  W.  707. 

Nebraska.— Parsons     v.     State,     61  31.  Commonwealth      v.       Sullivan, 

Neb.    244,    85    N.    W.    65,    following  156  Mass.  487,  31  N.  E.  647. 


§  674] 


E\  ID 


717 


to  show  that  it  was  in  fact  intoxicating.  Of  course  this  does  not 
apply  where  the  liquor  is  one  of  whose  intoxicating  qualities  the 
court  will  take  judicial  notice.32 

§  674.  Whether  liquor  intoxicating — evidence  as  to. 

The  fact  that  the  liquor  sold  was  intoxicating  need  not  neces- 
sarily be  shown  by  direct  evidence  but  may  be  established  by  cir- 
cumstantial evidence.33  In  showing  the  intoxicating  quality  of 
the  liquor  in  question  evidence  is  admissible  of  the  effect  of  some 
of  the  same  liquor  upon  persons  who  have  drank  it.34  And  as 
tending  to  show  the  intoxicating  quality  of  liquor  the  opinions  of 
witnesses  are  in  some  cases  admissible.35  So  a  witness  who  has 
drank  some  of  the  liquor  in  question  may  testify  as  to  its  effect 
upon  him  and  whether  in  his  opinion  it  would  produce  intoxi- 
cation.36 Again  upon  the  question  of  whether  a  certain  liquor 
found  in  the  possession  of  the  defendant   is   intoxicating  it   is 


32.  Kurz  v.  State,  79  Ind.  488; 
Deveny  v.  State,  47  Ind.  208;  How- 
ser  v.  State,  18  Ind.  106. 

33.  Dant  v.  Slate,  83  Ind.  GO. 

34.  Alabama. — Costello  v.  State, 
130  Ala.  143,  30  So.  376. 

Georgia. — Thorpe  v.  State,  89  Ga. 
748,  15  S.  E.  647. 

Kansas.  State  v.  Adams,  44  Kan. 
L35,  24  Pac.  71. 

Pennsylvania,. — Commonwealth  v. 
Reyburg,  122  Pa.  St.  299,  16  Atl. 
351,  2  L.   R.  A.  415. 

South  Carolina, — State  v  Robison, 
61  S.  C.  106,  39  S.  E.  2)7. 

Texas. — Taylor  v.  State,  44  Tex. 
Cr.  App.  437,  72  S  W.  181;  Pike  v. 
State,  40  Tex.  Cr.  App.  613,  S.  W. 
395. 

Where  the  article  sold  is  called  a 
"tonic"  or  "bitters"  testimony  of 
witnesses  as  to  its  intoxicating  effect 
upon   them   after   drinking   it   is   ad- 


missible. Brantley  v.  State,  91  Ala. 
47,  8  So.  816. 

35.  Alabama. — Carl  v.  State.  87 
Ala.  17,  6  La.  118,  4  L.  R.  A.  380. 

Indiana. — West  v.  State,  32  Ind. 
App.  161,  69  X.  E.  465. 

Kentucky. — Cockerell  v.  Common- 
wealth, 115  Ky.  296,  7:;  S.  W.  760. 

Missouri. — State  v.  Brosius,  39 
Mo.  534. 

New  York. — People  v.  Henschel,  12 
N.  Y.  Supp.  46. 

Evidence  as  to  quantity  necessary 
to  produce  intoxication  as  compared 
with  whisky  may  be  stated  by  a  wit- 
ness though  in  the  form  of  an 
opinion.  State  v.  Brosius,  39  Mo. 
534. 

3<i.  Carl  v.  State.  87  Ala.  17,  6  La 
118,  4  L.  R.  A.  380.  See  West  t. 
State.  32  Ind.  App.  161,  69  N.  E. 
465;  Terry  v.  State.  44  Tex.  Cr.  411. 
71   S.  W.  968. 


7 IS  EVIDENCE.  [§§  675,070 

proper  to  permit  a  witness  to  testify  as  to  the  per  cent  of  alcohol 
it  contains  as  shown  by  an  analysis.37 

§  675.  Evidence  as  to  kind  of  liquor. 

"Where  an  indictment  charges  the  sale  of  spirituous  and  alco- 
holic liquors  the  charge  is  sustained  by  proof  of  the  selling  of  either 
or  both.38  And  an  indictment  for  selling  spirituous  liquor  is  sus- 
tained by  proof  of  a  sale  of  a  common  cordial.37  Again,  the  pres- 
ence of  United  States  internal  revenue  stamps  on  kegs  of  beer  is 
competent  as  tending  to  show  that  the  kegs  contained  malt  liquor.40 

§  676.  Evidence  as  to  place. 

It  is  incumbent  upon  the  state  to  show  the  place  of  the  commis- 
sion of  the  offense  alleged.41  If  the  prosecution  is  for  an  offense 
which  becomes  such  by  reason  of  its  being  committed  within  certain 
limits  of  some  specified  institution  or  class  of  institutions  or  build- 
ings the  evidence  must  bring  the  offense  within  the  terms  of  the 
statute.42  And  evidence  of  the  location  of  the  premises  is  essential 
in  the  case  of  an  indictment  for  the  maintenance  of  a  liquor  nui- 
sance.43    Again,  where  the  offense  is  alleged  to  have  been  com- 

37.  Maine.— State     v.     Picbe,     98       200 ;   Jackson  v  State,   19  Intl.   312; 
Me.  348,  50  Atl.  1052.  Savage     v.     Commonwealth,    84     Va. 

Massachusetts. — Commonwealth     v.  582,  5  S.  E.  563. 

Brelsford,    161    Mass.    61,    36    N.    E.  42.  Henry   v.    State,   71    Ark.    574, 

677.  76  S.  W.  1071;  Albia  v.  O'Harra,  64 

Nebraska.— Kerr  v.  State,  63  Neb.  Iowa   297,   20   N.   W.   444;    State  v. 

115,  88  N.  W.  240.  Midgett,  85  N.  C.  538. 

New     York. — People     v.     Kastner,  43.  State  v.  Gurlagh,  76  Iowa  141, 

101    App.   Div.   265,   91   N.   Y.   Supp.  40  N.  W.  141. 

1004.  In    a   prosecution    for   the   mainte- 

Rhode    Island — State   v.    McKenna,  nance  of   a   liquor   nuisance   the   evi- 

16  R.  I.  398,  17  Atl.  51.  dence    should    show    the    place   to   be 

38.  State  v.  Rogers,  39  Mo.  431.  that    alleged    in    the    indictment    or 
'•">'•*•  State      v.      Bennet,      3      Harr.  information  and  it  is  error  to  admit 

(Del.)    505.  evidence  showing  the  maintenance  of 

40.  State  v.  Wright,  68  N.  H.  a  nuisance  at  another  place.  State 
351,  44  Atl.  519.  v.    O'Neal    (N.    D.    S.    C.    1909),   124 

41.  Henry   v.    State,    04   Ark.    496,  N.  W.  68. 
43  S.  W.  498;  Long  v.  State,  50  Ind. 


EVIDENCE. 


719 


§  677] 

milted  within  the  limits  of  a  municipal  subdivision  the  evidence 
should  show  thai  the  offense  was  committed  at  the  place  alleged.44 


§  677.  Evidence  as  to  time. 

The  evidence  should  show  that  the  offense  was  committed  prior 
to  the  finding  of  the  indictment  and  within  the  period  prescribed 
by  the  statute  of  limitations  so  that  it  is  not  barred  thereby.45 
And  where  after  the  adoption  of  local  option  in  a  county  a  prose- 
cation  is  commenced  under  the  general  law  in  force  prior  thereto 
it  is  held  necessary  to  show  that  the  offense  charged  was  done 
while  the  general  law  was  in  force.46  But  where  the  exact  day 
is  not  essential  to  a  description  of  the  offense  it  is  not  essential 
to  prove  that  a  sale  was  made  on  the  day  charged,  provided  it  is 
shown  not  to  have  been  barred  by  the  statute  of  limitations.47  So  it 
is  said :  "  It  is  well  settled  that  the  time  of  committing  an  offense, 


44.  Mitchell  r.  State,  97  Ga.  213, 
22  S.  E.  386 ;  Botto  v.  State,  26  Miss. 
108;  State  v.  Horn,  64  N.  J.  L.  14!), 
44  Atl.  845;  Moore  v.  State,  12  Ohio 
St.  387;  Hood  v.  State,  35  Tex.  Cr. 
App.  585,  34  S.  W.  935. 

45.  Arkansas. — Stelle  v.  State,  77 
Ark.  441,  92  S.  W.  530;  Dixon  v. 
State,  67   Ark.  495,  55   S.  W.  850. 

Georgia. — Bragg  v.  State,  126  Ga. 
442.  55  S.  E.  232;  Patton  v.  State, 
so  Ga.  Tit,  6  S.  E.  273. 

In 'liana. — Buckner  v.  State,  56 
Ind.  207. 

Kansas. — State  v.  Reick,  43  Kan. 
279,  23  Pac.  577. 

Missouri. — State  v.  Madeira,  125 
Mo.  App.  SOS,  102  S.  W.  1046;  State 
v.  Kolb,  -»s   Mo.  App.  2C.H. 

Texas. — Vaughan  v.  State  (Tex. 
Cr.  1906),  it:?  S.  \Y.  741:  Billings  v. 
State.  41  Tex.  Cr.  App.  253,  53  S. 
W.    S54. 

40.  Patton  v.  State,  80  Ga.  714, 
6  S.  E.  273. 

47.  Arkansas. — Fitzpatrick  v. 

State,  37  Ark.  373. 


Georgia.— Pitts  v.  State,  124  Ga. 
79,  52  S.  E.  147;  Watts  v.  State, 
120  Ga.  496,  48  S.  E.  142. 

Indiana. — Fowler  v.  State,  85  Ind. 
538. 

Louisiana. — State  v.  Stover,  111 
La.  92,  35  So.  405. 

Michigan. — People  v.  Dieterich, 
142  Mich.  527,  105  X.  W.  1112. 

Missouri. — State  v.  Small,  31  Mo. 
197;  State  v.  Lantz,  90  Mo.  App. 
15 ;  State  v.  Carnahan,  63  Mo.  App. 
244. 

New  )'<>rk. — People  v.  Krank,  46 
Hun   632. 

Snulh  Carolina. — State  v.  Green, 
61  S.  C.  12.  3!t  S.  E.  IS.',. 

Texas. — Monford  v.  state,  35  Tex. 
Cr.  237,  33   S.  W.  351. 

Examine  Barding  v.  Common- 
wealth, 105  Va.  858,  52  S.  E    832. 

The  exact  hour  of  the  tinie  of 
the  offense  as  fixed  by  the  state  is 
not  a  limitation  upon  the  jury. 
Dive    v.    state    (Tex.    Cr.)  ,   55 

S.   W.   65. 


720  EVIDENCE.  [§   678 

except  when  time  enters  into  the  nature  of  the  offense,  or 
where  the  time  is  an  essential  element  of  the  crime,  may  be  laid 
and  proved  on  any  day  previous  to  the  finding  of  the  bill  of  in- 
dictment, or  the  filing  of  the  information  or  complaint,  during 
the  period  within  which  under  the  statute  it  may  be  pros- 
ecuted, and  that  the  proof  is  not  limited  to  the  day  alleged."  42 
And  in  the  case  of  an  alleged  unlawful  sale  by  a  druggist  the  fact 
that  the  prosecution  elects  to  rely  on  a  sale  made  on  a  particular 
day  does  not  exclude  evidence  of  other  sales  to  the  same  person  at 
about  the  same  time,  such  evidence  tending  to  show  that  the  liquor 
was  not  wanted  for  medical  purposes  and  the  lack  of  good  i'aith 
on  the  part  of  the  seller.49 

§  678.  Sales  on  Sunday. 

"Where  an  accused  is  charged  with  an  unlawful  sale  of  liquors 
on  a  Sunday,  the  evidence  should  show  that  the  sale  was  made  on 
that  day,  though  it  is  held  that  it  is  not  essential  that  the  proof 
should  show  that  it  was  on  the  exact  date  alleged  ;  it  being  generally 
held  sufficient  to  prove  a  sale  on  a  Sunday  prior  to  the  finding  of 
the  indictment  and  on  a  date  which  is  not  barred  by  the  statute  of 
limitations.50  And  though  an  indictment  in  charging  a  viola- 
tion of  the  liquor  law  on  a  Sunday  names  a  date  which  does  not 
fall  on  Sunday,  it  has  been  held  to  be  supported  by  proof  of  its 
commission  on  a  Sunday.51    An  offer  or  exposure  for  sale  of  liquor 

48.  State   v.   Whipple,   57   VI.   637,  But  see  People  v.   Lavin,  4  N.  Y. 

.     Per  Walker.  J.  Cr.  R.  547,  holding  that  where  it  is 

49.  State  v.  Elliott,  45  Kans.  525,       essential  to  constitute  the  offsnsethat 
26   Pac.   55.  it  should  be  committed  on  a  particu- 

£»<>.  Marre   v.   State,   36   Ark.   222;  lar   day   of  the  week  that  the  proof 

Eoop    v.    People,    47    111.    327;    Pan-  should    not    only    show    that    it    oc- 

cake  v.  State,  81  Ind.  93:  Webb  City  curred  on   such   a  day  hut   also  that 

v.    !':irker,   103  Mo.   App.   205,   77   S.  it  occurred  on  the  very  day  alleged. 

W.    119.  51«  State  v.  Bryson,  90  N.  C.  747. 

Evidence     of     a     saloon     being  See    also    People    v.    Ball,    42    Barb. 

open    on    Sunday    is    sufficient    in  (N.    Y.)    324,    wherein    it   was   said: 

the      absence     of      any      explanatory  "  It  was  not  an   essential  element  in 

evidence.     State  v.   Grant,  20   S.  D.  the    offence    charged    that    it    should 

164,  105  N.  W.  97.  have    been    committed    on    the    13th 


§    079]  EVIDENCE.  721 

on  a  Sunday  is  sufficiently  shown  by  evidence  of  witnesses  for  the 
prosecution  thai  they  went  into  the  saloon,  stood  before  a  bar 
and  ordered  a  drink  from  the  defendanl  who  was  behind  flu-  bar, 
whereupon  he  put  down  a  bottle  and  glasses  upon  the  bar,  and 
that  they  then  pound  liquor  out  of  the  bottle  into  the  glasses 
which  they  drank  and  that  it  was  whisky.02 

§  679.  Evidence  as  to  keeping  open  on  Sunday. 

Where  the  prosecution  is  for  keeping  open  a  licensed  saloon 
on  Sunday  it  is  proper  to  show  that  the  drinks  were  being  dis- 
pensed at  the  bar  in  such  place  on  that  day.53  And  a  witness  may 
testify  that  he  was  in  the  saloon  on  the  Sunday  in  question  and 
purchased  liquor  there.54  And  a  statute  may  forbid  the  keep- 
ing open  of  a  saloon  on  Sunday,  and  that  no  person  not  employed 
shall  be  permitted  to  remain  in  or  about  such  place  and  that  if 
it  appear  that  a  person  not  so  employed  is  permitted  to  remain 
in  the  saloon,  such  fact  shall  be  prima  facie  evidence  of  the  guill 
of  the  accused  party.55  In  the  case  of  an  indictment  for  keep- 
ing open  on  Sunday  proof  of  justification  or  excuse  must  come 
from  the  defendant.56  And  where  a  party  is  charged  with  keep- 
ing open  a  licensed  saloon  on  Sunday  and  attempts  to  absolve 
himself  from  such  charge  by  evidence  that  he  had  no  knowledge 
of  such  fact,  and  had  given  his  bartenders  previous  explicit 
instructions  to  keep  such  place  closed  on  Sunday,  it  may  be  shown 
that  on  Sundays  previous  to  the  date  of  the  offense  charged  his 

day   of   the    month   mentioned,   or   on  53.  State   v.   Sodini,  84   Minn.  444, 

any  other  day   of  that    month:     The  S7    X.    \V.    1130.      See    State    v.    Ma- 

statement    of  the  day  of  the  month.  deira,   125   Mo.   App.  508,    102  S.  W. 

in   an   indictment  for  committing  an  1046;    McKinney    v.    city    of    Nash- 

offense  on  Sunday,  though  the  doing  ville,  <M>  Tenn.  7m.  33  S.  W.  724. 

of  the  act  on  that  day  is  the  i_'i-t  of  •"» ».  Berod    v.    State.    41    Tex.    Cr. 

the    offense,     is     not     more     material  597,  56  S.  W.  59. 

than    in    other   cases."      Per   Daniels,  56.   Birmingham      v.      People,      40 

j  Colo.  362,  '.n»  Pac.  1121. 

52.  People  v.   Clark.   61    App.   Div.  66.  Warwick  v.   State,  48  Ark.  27, 

(N.  Y.)    500,  Tit  X.  V.  Supp.  594.  2  S.  W.  253. 


~22  EVIDENCE.  r§   gg(j 

saloon  was  open  and  running.57  But  where  the  statute  permits 
the  presence  of  waiters  in  the  barroom  for  the  purpose  of  obtain- 
ing and  serving  drinks  in  a  dining  room  adjoining,  and  in  a 
prosecution  of  a  person  it  is  alleged  that  persons  were  present  in 
the  barroom  but  it  is  claimed  by  the  defendant  that  they  were 
there  for  the  purpose  permitted  by  statute,  the  burden  is  on 
the  people  to  prove  beyond  a  reasonable  doubt  that  such  persons 
were  not  in  the  employ  of  the  defendant  and  admitted  to  the 
barroom  in  the  course  of  their  employment.58  In  this  connec- 
tion is  is  also  decided  that  where,  on  the  prosecution  of  a  person 
for  keeping  his  saloon  open  on  Sunday,  it  is  shown  that  persons 
were  admitted  to  the  saloon  on  that  day,  it  is  not  material  whether 
any  sales  of  liquor  were  made  or  not.50 

§  680.  Intent,  knowledge  or  good  faith  on  part  of  defendant. 

Where  by  statute"  an  act  is  made  an  offense  under  the  liquor 
laws  without  regard  to  the  intent  with  which  it  is  done,  evidence 
of  an  intent  is  not  material.60  And  a  witness  should  not  be 
permitted  to  testify  as  to  his  intention,  in  going  to  a  saloon,  in 
regard  to  the  purchase  of  beer  and  drinking  it  upon  the  premises 
knowing  the  defendant  had  no  license  to  sell  by  the  glass,  for  the 
purpose  of  evading  the  law  as  such  evidence  bears  in  no  way  upon 
the  motives  of  the  defendant  or  his  conduct  in  the  management 
of  his  place.61  So  evidence  of  the  purpose  with  which  persons 
visited  a  room  where  liquors  were  kept  by  defendant  is  irrele- 
vant to  the  inquiry  whether  or  not  such  persons,  while  there, 
procured  the  liquors,  with  the  knowledge  and  consent  of  the 
defendant    for   unlawful    purposes.62      But   where    intent    is    an 

57.  State  v.  Sodini,  84  Minn.  444,  132  Pa.  So.  357,  19  Atl.  273;  Pette- 
87  X.  W.  1130.  way  v.   State,   3G  Tex.  Cr.  97,   35   S. 

58.  People  v.   Ryan,   85   App.   Div.       W.   646. 

(N.   Y.)    524,  83  N.  Y.  Supp.   657.  61.  Delaney  v.   State,   51   N.   J.   L. 

5».  People   v.    Bowkus,    109    Mich.  37,  16  Atl.  267. 

360,   67   N.  W.   319.  62.  state  v.  Harris,  64  Iowa  287, 

60.  Commonwealth      v.      Halstine,  20  N.  W.  439. 


§  680]  EVIDENCE.  723 

element  of  the  offense  as  where  an  accused  is  charged  with  the 
offense  of  keeping  liquors  for  unlawful  sale,  evidence  of  previous 
unlawful  sales  made  by  him  is  admissible  as  tending  to  show 
such  intent.03  So  the  unlawful  intent  with  which  liquors  were 
kept  may  be  presumed  from  the  fact  of  their  sale  in  violation 
of  law.64  So  where  the  evidence  showed  that  there  was  beer 
freshly  drawn  under  the  bar;  that  a  bottle  of  whisky  and  a 
glass  were  upon  the  bar ;  that  barkeepers  of  the  proprietor  were 
present  in  their  shirt  sleeves  and  that  there  were  several  men 
also  present  it  was  held  that,  in  the  absence  of  evidence  explaining 
such  facts  they  would  warrant  the  inference  that  the  defendant's 
barkeepers  were  intending  to  sell  intoxicating  liquors  on  the  Sun- 
day in  question  and  that  they  were  acting  by  the  authority  of 
the  defendant.65  And  as  tending  to  show  knowledge  on  the  part 
of  the  owner  of  a  building  where  he  is  charged  with  knowingly 
having  permitted  a  liquor  nuisance  to  be  maintained  there,  evi- 
dence that  it  was  generally  regarded  in  the  community  as  being 
used  for  such  a  purpose  is  admissible.66  Evidence  is  also  admis- 
sible of  a  notice  sent  by  the  prosecuting  officer  to  the  defendant 
informing  him  of  the  intoxicating  character  of  the  liquor  which 
he  was  selling.67  The  state  may  also,  for  the  purpose  of  showing 
the  knowledge  and  intent  of  the  defendant,  show  as  to  the  character 
of  the  liquors  and  the  purpose  of  their  sale  circumstances  in 
connection  with  a  sale  such  as  that  the  defendant  refused  to 
permit  the  purchaser  to  drink  the  same  upon  the  premises.68     So 

63.  Connecticut.— State     v.     Hart-  6  4.  Hornberger    v.    State,    47    Neb. 

wick.    40    Conn.    101;    State   v.    Ray-  40,  06  X.  W,  23. 

mond    21  ('nun.  2ii4.  65#  Comomnwealth      v.      McNeese, 

7o,ca.— State    v.    Sartori,    55    Iowa  150  Mass.  231,   30  N.   E.   1021. 

340    7  X.  W.  004.  e6.  State  v.   Brooks,  74   Kan.   175. 

Massachusetts. — Commonwealth    v.  sr>   Pac.   1013. 

Gould.   158   Mass.    199,  33  X.  E.  656.  «7.  Henderson    v.    State,    49    Tex 

Michigan.— People    v.    Moore,    155  Cr.  269,  91  S.  W.  569. 

Mich.  107.   IIS  X.  W.  742.  ««•  State  v.  Costa,  78  Vt.   198,  62 

Nebraska. — Hans  v.  State,  50  Neb.  Atl.  38. 
150,  69  X.  W.  838. 


724  EVIDENCE.  [§   eg! 

evidence  of  a  conversation  between  a  traveling  salesman,  desiring 
to  sell  a  certain  so-called  tonic,  and  a  druggist  who  refused  to 
buy  the  tonic  in  question  during  which  a  changing  of  the  name  of 
the  labels  was  proposed  by  the  former,  which  was  done  is  ad- 
missible as  tending  to  show  knowledge  on  the  part  of  the  druggist 
and  an  intent  to  evade  the  law.69  In  a  prosecution  for  selling  in- 
toxicating liquor  without  a  license  the  defendant  cannot  show  in 
defense  that  although  it  was  intoxicating,  it  was  sold  in  good  faith 
for  use  as  a  medicine.  "  The  seller  must  acquaint  himself  with 
the  contents  of  the  liquor  preparation  he  is  selling;  and  if  it  is 
one  of  the  liquors  under  the  ban  of  the  law,  or  contains  the  elements 
necessary  to  constitute  an  intoxicating  liquor  in  such  form  as  it 
may  be  used  as  a  beverage  '  it  is  unlawful  to  sell  the  same,  even 
though  the  seller  do  so,  thinking  in  good  faith  that  it  is  to  be 
used  as  a  medicine."  70 

§  681.  As  to  keeping  place  for  unlawful  selling — liquor  nuisance. 
Upon  the  prosecution  of  a  person  for  keeping  a  building  used 
for  the  illegal  sale  of  intoxicating  liquors  an  indictment  is  not 
supported  by  evidence  that  the  defendant  was  owner  of  the  prem- 
ises and  made  a  lease  of  them  to  another,  knowing  that  they  were 
to  be  used  for  such  illegal  sales  and  were  in  fact  so  used.71  But  a 
conviction  for  maintaining  a  liquor  nuisance  is  sustained  by 
evidence  of  statements  by  the  defendants  to  others  that  be  in- 
tended to  sell  liquor  at  the  place  in  question,  that  liquor  was  sub- 
sequently bought  there,  that  the  odor  of  liquor  came  from  such 

69.  Murry    v.    State,    40    Tex.    Cr.  and   keeping   of    intoxicating    liquors 
128,  79  S.  W.  508.  where  the  only  evidence  is  that  the 
TO.  Sidle    v.    State,    77    Ark.    441,  occupant  of  the  house  and  the  serv- 
92  S.  W.  530.      Per  McCulloch.  J.  ants    of    the    defendants    sold    liquor 
But  see  §§  herein  as  to  good  faith  in  there  it  is  a  question  for  the  jury  to 
sales  of  compounds.  decide   under    proper    instructions    as 
71.  Commonwealth      v.      Churchill,  to  the  effect  of  a  sale  in  defendant's 
136  Mass.  148.  house    by    his    servants.       Common- 
Question    for    jury*— Upon     the  wealth    v.    Dunbar,    9    Gray    (Mass.) 
prosecution   of  a  person   for   keeping  298. 
a  building   used   for   the   illegal   sale 


§   682]  EVIDENCE.  725 

place  and   thai   empty   vessels   which  had  contained  liquor  were 
found  there.72 

§  682.  As  to  liquors  kept  for  unlawful  sale. 

Where  a  person  is  charged  with  keeping  spirituous  and  malt 
liquors  for  unlawful  sale,  there  should  be  evidence  of  the  spirit 
or  malt  element  in  the  liquors,  and  also,  evidence  that  they  were 
kept  for  sale.73  But  the  fact  that  liquors  were  kept  for  unlawful 
sale  may  be  proved  without  showing  a  sale  or  an  offer  or  an  at- 
tempt to  sell.74  Thus  the  finding  of  intoxicating  liquors  upon  the 
premises  may  in  connection  with  other  circumstances  be  presump- 
tive evidence  of  a  keeping  for  unlawful  sale.75  And  it  is  proper 
in  some  cases  to  instruct  the  jury  in  such  a  case  that  the  finding 
of  intoxicating  liquors  upon  the  premises  is  prima  facie  evidence 
that  they  were  kept  there  for  unlawful  sale.76  So  it  has  been  held 
proper  to  exhibit  to  the  jury  articles  taken  from  the  place  charged 
to  be  a  nuisance  during  the  time  it  is  alleged  to  have  been  such  and 
at  the  time  the  defendants  were  arrested  even  though  the  contents 
of  a  part  of  the  bottles  and  other  vessels  are  not  shown  to  be  intoxi- 
cating liquor.77     And  in  such  a  case  evidence  is  also  admissible  of 

72.  Slate  v.   Cleary,   97   Iowa  413,  New     Hampshire.— State     v.     Gor- 

6G  N.  W.  724.  man,  58  N.  II.   77. 

T3.  Hollingsworth    v.    City    of   At-  Rhode     Island.— State    v.     Hoxsie, 

lanta,  79  Ga.   503,   5   S.  E.  37.  15  R.  I.   1,  22  Atl.   1059,  2  Am.  St. 

7i.  State    v.    McGlynn,    34    N.    H.  Rep.  838. 

422.    See  State  v.  Sniter,  78  Vt.  391,  Vermont.— Lincoln     v.     Smith.     27 

63  Atl.   1S2.  Vt.  328. 

7.-..  Iowa. — State  v.  Arie,  95  Iowa  76.  State  v.  Giroux,  75  Kan.  095, 

375,   64    X.  W.  268;    State  v.  Shank,  90  Pac.  249. 

74  Iowa  649,  38   X.  W.  523.  77.  State  v.  Giroux,   75   Kan.   695, 

Massachusetts. — Commonwealth    v.  90   Pac.  249. 

Martin,  162  Mass.  402,  38  X.  E.  708;  Articles     found     on     another's 

Commonwealth    v.   fanny.    158   Mass.  premises  but   in   the  same  building 

210,  33  X.  E.  340;  Commonwealth  v.  and     under     such     eireumstanees 

Eenry,   109  Mass,  366.  tended   to   show   that    they   were  for 

Nebraska.— O'Neill     v.     State,     76  the  use  of  the  defendant   have 

Neb.  44.   107  N.  W.   119;    Steinkuh-  held  admissible.     Stat,,  v.  Sniter,  78 

ler  v.  State.  77  Neb.  331,  109  N.  W.  Vt.   391,  63   Atl.   J82. 

395  The    finding    of    empty    bottles 


726  EVIDENCE.  [§    682 

the  keeping  of  other  liquors  than  those  charged.78  Again  evidence 
of  the  amount  and  kind  of  liquors  kept  is  also  admissible  for  the 
consideration  of  the  jury  in  determining  the  purpose  for  which 
the  defendant  kept  liquors.79  And  evidence  of  the  conduct  of  the 
defendant  at  the  time  of  the  search  of  the  premises  by  the  officers 
such  as  attempts  to  deceive  them  or  to  conceal  or  destroy  the  liquors 
is  also  admissible  as  tending  to  show  the  purpose  of  the  keeping.80 
So  in  the  case  of  an  indictment  for  unlawfully  keeping  intoxicat- 
ing liquors  for  sale  evidence  of  attempted  concealment  of  glasses 
bottles  and  vessels  in  which  liquor  was  or  had  been  contained  is 
competent.81  Again  evidence  has  been  held  admissible  of  persons 
being  seen  to  leave  the  premises  at  different  times  in  an  intoxicated 
condition.82  But  evidence  that  some  weeks  prior  to  the  finding  of 
the  indictment  for  keeping  a  liquor  nuisance,  liquors  were  seized 
upon  the  same  premises  under  a  search  warrant,  and  after  trial 
restored  is  not  admissible  where  no  attempt  is  made  to  show  that 
the  violations  of  law  charged  in  the  indictment  were  the  same  as 
those  charged  in  the  proceedings  under  which  the  liquors  were 
seized.83  And  the  fact  that  some  liquors  were  kept  in  storage  by 
the  defendant  has  been  held  to  be  immaterial  upon  the  question 
whether  there  had  been  an  unlawful  sale  by  him.84  And  on  the 
trial  of  a  person  for  keeping  liquors  for  unlawful  sale  he  may 

which  contained  a  so-called  Mass.  6,  35  N.  E.  83;  Common- 
medicine  may  be  shown  for  pur-  wealth  v.  McKenna,  158  Mass.  207, 
pose  of  proving  the  drinking  of  such  33  N.  E.  38!). 

medicine    as    a    beverage.      Murry    v.  Evidence    of    the    presence    of 

People,    46    Tex.    Cr.    128,    79    S.    W.  intoxicated      persons      upon      the 

premises  at  the  time  a  search  thereof 

78.  Weinandt    v.     State,    80    Neb.  was   made  and  that  they  were  quar- 
161,    113   N.   W.    1040.  reling    over   a    bottle    has    been    held 

79.  State  v.   Shank,  74   Iowa   649,  admissible  though  it  was  shown  that 
38   N.   W.   523.  the  bottle  did   not  contain   intoxicat- 

80.  Commonwealth    v.    Lynch.    104  ing  liquor.     State  v.  Krinski,  78  Vt. 
Mass.    541,    42    N.    E.    95;    Common-  162,   02   All.   37. 

wealth    v.    Shaw,    110   Mass.   8.  83.  Slate   v.   Zimmerman,   7S   Iowa 

81.  Commonwealth      v.      Brothers,       014,  43  N.  W.  458. 

158  Mass.  200,  33  N.  E.  380.  84.  Donald  v.  State    (Miss.) 

82.  Commonwealth    v.    Shea,    160       41   So.  4. 


§  083] 


EVIDENCE. 


727 


show  that  the  keeping  was  by  him  as  a  pharmacist  in  compound- 
ing medicines  but  he  will  not  be  permitted  to  introduce  in  evidence 
hand  bills,  as  samples  of  those  distributed  by  him  in  advertising 
certain  medicines  in  the  absence  of  evidence  to  show  that  liquor 
was  used  in  compounding  these  medicines.85 

§  683.  License  from  United  States. 

As  we  have  stated  elsewhere  a  license  from  the  United  States 
affords  the  holder  no  protection  in  case  of  a  violation  of  the  state 
laws  and  therefore  evidence  of  such  fact  would  not  be  admissible 
in  defense  of  a  prosecution  for  a  violation  of  such  laws.86  On  the 
other  hand,  however,  evidence  is  in  many  cases  admissible  in  behalf 
of  the  state  of  the  possession  by  the  defendant  of  a  license  from 
the  United  States  as  tending  to  show  the  guilt  of  the  accused 
in  prosecutions  such  as  keeping  liquors  for  the  purpose  of  un- 
lawful sale  and  other  similar  offenses.87     And  by  statute  in  some 


85.  State  v.  Hitchcock,  68  N.  H. 
244,  44  Atl.  296. 

86.  See  §  84  herein. 

87.  Kentucky. — Throckmorton  v. 
Commonwealth,  20  Ky.  Law  Rep. 
1508,  49   3.  W.  474. 

Maryland. — Guy  v.  State,  90  Md. 
692,  54  Atl.  879. 

Massachusetts. — •Commonwealth  v. 
Brown,  124  Mass.  318. 

Mississippi. — Burnett  v.  State,  72 
Miss.  994.   18  So.  432. 

Missouri. — State  v.  Munch,  57 
Mo.   App.  207. 

Nebraska. — Fruide  v.  State,  66 
Neb.  244,  92   X.  W.  320. 

North  Carolina. — State  v.  Dowdy, 
145  X    C.  432,  58  S.    E.   1002. 

Rhode  Island. — State  v.  Mellor,  13 
R.  I.  66. 

Texas. — Coleman  v.  State,  53  Tex. 
Cr.  578,  111  S.  W.  1011;  Clark  v. 
State,  40  Tox.  Cr.   127,  40  S.   W.   85. 

Vermont. — State  v.  Intoxicating 
Liquors,  44   Vt.   258. 


A     copy     of    a    United     States 

revenue  collector's  records  sworn  to 
by  him  as  a  correct  and  true  copy  is 
admissible  for  this  purpose.  State 
v.  Xippert,  74  Kan.  371,  80  Pac.  478. 

The  state  may  on  cross-ex- 
amination of  the  defendant  prove 
that  the  defendant  held  a  United 
States  revenue  license  to  sell  whisky. 
Clark  v.  State,  40  Tex.  Cr.  App.  127, 
49   S.  W.   85. 

A  return  made  by  the  de- 
fendant to  the  revenue  col- 
lector declaring  an  intention  to 
carry  on  tho  business  of  a  retail  liq- 
uor  dealer,  with  the  payment  of  the 
tax  thereon  is  admissible  in  evidence 
for  the  purpose  of  showing  an  in- 
tention to  sell.  State  v.  Teahon,  50 
I         i.   '.12. 

Evidence  is  not  admissible  of 
the  obtaining  of  such  a  license  subse- 
quent to  the  date  of  the  offense 
charged.  Lane  v.  State,  49  Tex.  Cr. 
335,  92   S.   \Y.  839. 


728  EVIDENCE.  [§   684 

states  the  possession  of  a  license  from  the  United  States  is  made 
prima  facie  evidence.88  Such  a  statute  is  held  to  be  declaratory 
merely  of  the  common  law  and  valid.89  Evidence  of  this  nature 
being  prima  facie  merely,90  a  defendant  is  entitled  to  offer  evi- 
dence in  explanation  of  such  fact  and  to  have  the  jury  consider 
it  in  connection  therewith.91  And  in  this  connection  it  has  been 
held  proper  to  instruct  the  jury  that  the  possession  of  such 
license  was  prima  facie  evidence  that  the  defendant  was  engaged 
in  the  liquor  business  but  that  he  could  not  be  convicted  on  such 
evidence  alone.92  As  tending  to  show  the  purpose  for  which  the 
defendant  took  out  the  license  evidence  is  admissible  of  what 
passed  between  him  and  the  assessor  of  internal  revenue  at  the 
time  when  he  applied  for  the  license.93  But  to  render  evidence  of 
such  a  license  competent  it  is  essential  that  it  should  cover  the 
period  within  which  the  offense  is  alleged  to  have  been  com- 
mitted.94 And  the  possession  of  a  government  license  though  made 
by  statute  prima  facie  evidence  of  a  blind  tiger  has  been  held  not 
to  be  evidence  that  the  owner  or  occupant  of  the  house  was  selling 
liquor.95 

§  684.  As  to  sales  to  prohibited  classes. 

Where  law  prohibits  the  sale  of  liquor  to  a  person  belonging  to 

88.  Arkansas.— Winton     v.     State,  262;    Williamson    v.    State,    41    Tex. 

77  Ark.  143,  91  S.  W.  7.  Cr.  461,  55  S.  W.  568. 

Kentucky.— Hestand    v.    State,    28  »l.  State   v.   Morin,    102   Me.    290, 

Ky.  Law  Rep.   1315,  92   S.  W.   12.  66  Atl.  650;  Fruide  v.  State,  66  Neb. 

Maine.— State  v.  O'Connell,  82  Me.  244,  92  N.  W.  320. 

30,  19  Atl.  80.  »2-  Guy  v.   State,   96  Md.   692,   54 

Michigan. — People    v.    Remus,    135  Atl.   879. 

Mich.  629,  98  N.  W.  397,  100  N.  W.  It     is     error     to     instruct     the 

403.  jury   that    evidence    of    this    fact    is 

North  Dakota.— State  v.  Momberg,  conclusive.      Stati    v.    Momberg,    14 

14  N.  D.  291,  103  N.  W.  506.  N.  D.  291,  103  N.  W.  506. 

89.  Commonwealth    v.    Uhrig,    146  »3.  Commonwealth    v.    Austin,    97 

Mass.   132,   15  N.   E.   156.  Mass.  595. 

!><>.  State  v.    Intoxicating   Liquors,  »•*•  Snyder  v.  State,  78  Miss.   366, 

80    Me.    57,    12    Atl.    794;    Common-  29   So.   78. 

wealth  v.  Keenan,   11   Allen    (Mass.)  »5.  Liles  v.  State,  43  Ark.  95. 


§  <;85]  EVIDENCE.  729 

a  certain  designated  claes  of  persons  and  the  accused  is  charged 
with  making  a  sale  in  violation  thereof  the  evidence  should  be 
such  as  to  bring  the  offense  within  the  terms  of  the  statute.  So 
where  the  prosecution  is  for  a  sale  of  liquor  to  a  person  in  the 
habit  of  becoming  intoxicated  the  evidence  should  show  both  the 
fact  of  sale  and  that  the  person  to  whom  it  was  sold  was  in  the 
habit  of  becoming  intoxicated.96  But  although  where  the  offense 
alleged  is  a  sale  to  an  intoxicated  person  the  state  should  show 
that  such  person  was  intoxicated  at  the  time  of  the  sale  yet  it  is 
not  compelled  to  show  that  he  was  intoxicated  at  the  very  moment 
thereof,  it  being  sufficient  to  show  intoxication  a  short  time  before 
that,  from  which  intoxication  at  the  time  of  sale  may  be  inferred.97 
And  where  the  state  proves  the  sale,  and  that  the  purchaser  was 
at  the  time  in  a  state  of  intoxication,  the  case  is  prima  facie 
made  out  without  showing  that  the  defendant  knew  the  purchaser 
was  intoxicated,  as  the  law  will  presume  that  he  did  know  it.98  In 
the  case  of  an  alleged  sale  to  a  minor  the  evidence  should  show 
the  making  of  a  sale  to  one  who  was  in  fact  a  minor 


99 


§  685.  Burden  of  proof — defenses. 

As  to  those  matters  upon  which  a  defendant  may  rely  as  an 
excuse  or  justification  for  the  doing  of  the  act  alleged  and  which 
relieves  it  of  its  alleged  criminal  character,  thus  becoming  mat- 
ters of  defense  the  burden  of  proof  rests  upon  him  to  establish 
then.       This  rule  applies  to  an  exception  in  the  statute  which  is  in 


»G.  Miller  v.   State,   107    Ind.    152,  Arkansas. — Pounders    v.    State,    37 

7  N.  E.  898.  Ark.    339;    Edgar   v.    State,    37    Ark. 

97.  Kamman    v.    People,     124    111.  219. 

481,  1G  N    E.  6G1.  Colorado. — Lfiggett    v.    People    26 

98.  Brow  v.  State,  103  Ind.  133,  2  Colo.  364,  58    Pac.   lit. 

N.  E.  290.  Georgia. — Gaakins     v.     State,     127 

99.  Ehrich   v.   White.   74    111.    1*1  :  Ga.  51,  55  S.   E.   1045. 

Dolke  v.   State,  99  Ind.  229:    Ehlert  Illinois. — Gunnarssohn    v.    City    of 

v.  State,  93  Ind.  70.  Sterling,   92   III.  569. 

1.  Alabama.— Atkins    v.    State.    00  Iowa.— State      v.      O'Malley,      132 

Ala.  45.  Iowa   090.    109    .V    \Y.    491;    Shear   v. 


730  EVIDENCE.  [§   G85 

a  substantive  clause  subsequent  to  the  enacting  clause  and  not  so 
incorporated  with  the  enacting  clause  that  the  one  cannot  be  read 
without  the  other.2  So  where  a  sale  to  a  minor  is  permissible  if 
made  with  the  consent  of  the  parent  or  guardian,  if  the  defendant 
claim  in  defense  that  the  sale  was  of  such  a  character,  the  burden 
is  upon  him  to  establish  such  fact.3  And  though  a  defendant 
may  show  that  he  acted  in  good  faith  believing  the  purchaser  to 
be  an  adult  and  used  reasonable  precautions  in  making  a  sale  to 
an  alleged  minor  the  burden  of  establishing  such  defense  is  upon 
him.4  And  where  a  city  in  pursuance  of  a  power  in  its  charter 
adopts  an  ordinance  prohibiting  the  sale  of  any  intoxicating  liq- 
uors within  its  limits,  if  sales  of  such  liquors  are  made  in  the 
city  for  a  lawful  purpose,  the  burden  is  upon  the  seller  to  prove 
such  fact.5  And  in  the  case  of  a  pharmacist  where  a  sale  of  in- 
toxicating liquors  by  him  is  proved  the  burden  is  held  to  rest  upon 
him  to  prove  that  the  sale  was  a  lawful  one.6  And  that  liquor 
was  sold  upon  the  prescription  of  a  physician  is  a  matter  of  de- 


Green,  73  Iowa  688,  50  N.  W.  642;  2.  Devine    v.    Commonwealth,    107 

State  v.   Cloughly,   73   Iowa   626,    35  Va.   860,   60   S.   E.   37. 

N.  W.  652;  State  v.  Curley,  33  Iowa  3.  Alabama. — Freiberg      v.      State, 

359.  94   Ala.    91,    10    So.    703;    Farrall    v. 

Kansas. — State   v.    Crow,    53    Kan.  State,    32   Ala.   557. 

662,  37  Pac.   170.  Arkansas. — Pounders    v.    State,    37 

Kentucky. — Orme       v.        Common-  Ark.    399;    Edgar   v.    State,    37    Ark. 

wealth,    21    Ky.    Law   Pep.    1412,    55  219;   Williams  v.  State,  36  Ark.  430. 

S.  W.   195.  Georgia. — Graham     v.     State,     121 

Massachusetts. — Commonwealth    v.  Ga.    590,    49    S.    E.    678 ;    Dixon    v. 

Regan,   182   Mass,   22,   64   N.   E.   407.  State,    89    Ga.    785,    15    S.    E.    684; 

Nebraska. — Hornberger  v.  State,  47  Ridling  v.  State,  59  Ga.  601. 

Neb.  40,  66  N.  W.  23.  Illinois. — Monroe     v.     People,     113 

New  York.— People  v.  Maxwell,  83  111.   670. 

Hun  157,  31  N.  Y.  Supp.  564.  West    Virginia.— State    v.    Cain,    9 

Rhode  Island.— State  v.  Collins,  28  W.  Va.  559. 

R.  I.  439,  67  Atl.  796.  4.  Fehn  v.  State,  3  Ind.  App.  568, 

Texas.— Neal   v.   State,  51   Tex.  Cr.  29  N.  E.   1137. 

513,   102   S.  W.   1139.  5.  Gunnarssohn    v.    City    of    Ster- 

Virginia. — Devine       v.       Common-  ling,   92   111.   569. 

wealth,  107  Va.  860.  60  S.  E.  37.  <>■  State  v.  Cloughly,  73  Iowa  626, 

West    Virginia.— State    v.    Cain,    9  35  N.  W.  652. 
W.  Va.   55:j. 


§  080] 


EVIDENCE. 


731 


fense  and  the  burden  of  showing  it  is  upon  the  defendant.7     Upon 
the  prosecution  of  a  druggist  for  selling  intoxicating  liquors  with- 
out a  license,  a  prescription  for  sherry  wine  found  in  his  posses- 
sion along  with  others,  seemingly  filled  in  the  regular  cour- 
business  is  admissible  to  show  a  sale  on  the  date  marked  thereon.7" 

§  686.  Burden  of  proof — license  or  authority  to  sell 

"Where  the  possession  by  the  defendant  of  a  license  or  authoriza- 
tion would  be  a  defense  to  the  act  alleged  to  be  criminal  upon 
his  part,  the  burden  of  proof  rests  upon  him  to  show  that  he 
possesses  the  same.8       And  where  under  the  statute  in  force  a 


7.  State  v.  Emery,  98  N.  C.  768, 
3  S.  E.  810.  See  also  Atkins  v. 
State,  60  Ala.  45. 

7a.  Commonwealth  v.  Duprey,  180 
Mass.  523,  62  N.  E.  720. 

«•  United  States. — United  States 
v.   Nelson,   29   Fed.   202. 

Alabama. — Lambie  v.  State,  151 
Ala.  86,  44  So.  51. 

Arkansas. — Flower  v.  State,  39 
Ark.  209. 

Colorado. — Liggett  v.  People,  26 
Colo.  364,  58  Pac.  144. 

Georgia. — Sharp  v.  State,  17  Ga. 
290. 

Illinois. — Noecker  v.  People,  91 
111.  468. 

Indiana. — Taylor  v.  State,  49  Ind. 
555. 

Iowa. — State  v.  Kriechbaum,  81 
Iowa  633,  47  N.  W.  872. 

Kansas. — State  v.  Crow,  53  Kan. 
662,    37    Pac.    170. 

Kentucky. — Orme  v.  Common- 
wealth, 21  Ky.  Law  Pop.  1412,  55  S. 
W.  195. 

Maine. — State  v.  Woodward,  34 
Me.  293. 

Massachusetts. — Commonwealth  v. 
Regan.  182  Mass.  22,  64  N.  E.  407; 
Commonwealth  v.  Curran,  ll'.t  M;iss. 
200;  Commonwealth  v.  Ryan,  9  Gray 
137. 


Minnesota. — State  v.  Ahern,  54 
Minn.  195,  55  N.  W.  959. 

Mississippi. — Pond  v.  State,  47 
Miss.  39;  Thomas  v.  State,  37  Miss. 
353. 

Missouri. — State  v.  Edwards,  60 
Mo.  490;  State  v.  Stephens,  70  Mo. 
App.  554. 

Nebraska. — Hornberger  v.  State,  47 
Neb.  40,  66  N.  W.  23. 

New  Hampshire. — State  v.  Mc- 
Glynn,  34  N.  H.  422 ;  State  v.  Foster, 
23  N.  H.  348,  55  Am.  Dec.  191. 

New  Jersey. — Jackson  v.  Camden, 
48  N.  J.  L.  89,  2  Atl.  668. 

New  York. — Jefferson  v.  People, 
101  N.  Y.  19,  3  N.  E.  797;  People  v. 
Maxwell,  83  Hun.  157,  31  N.  Y. 
Supp.  564. 

North  Carolina. — State  v.  Sorell, 
98  N.  C.  73S.  4  S.  E.  630 J  State  v. 
Emery,  98  X.  C.  668,  3  S.  K.  636. 

Oklahoma. — Reed  v.  Territory.  1 
Okla.  Cr.  481,  98   Pac.   583. 

I'i  nnsylvania. — Commonwealth  v. 
Wenzel,  24    Pa.  Super.  Ct.  407. 

Rhode  Island. — state  v.  Higgins, 
13  R.  I.   330,    l".   Am.   lie;  .   26n. 

Texas. — Lucio  v.  State,  35  Tex. 
(r.   320,   38   S.   \V. 

Vermont. — State  v.  Xulty,  57  Yt. 
543. 


732  EVIDENCE.  [§    687 

person  may  either  by  an  exception  therein  or  by  an  express  permit 
or  license  be  authorized  to  sell  liquors  for  medical,  mechanical  or 
some  other  specified  purposes,  if  he  claims  that  the  sale  in  ques- 
tion was  for  a  purpose  for  which  he  is  authorized  to  sell,  the  bur- 
den of  proof  rests  upon  him  to  establish  that  fact.9 

§  687.  As  to  violation  of  instructions  by  agent. 

A  defendant  may  in  some  cases  be  permitted  to  show  that  the 
sale  for  which  he  is  being  prosecuted  was  made  by  an  agent  of 
his  in  violation  of  express  instructions  given  by  him  to  such 
agent.10  So  where  it  appeared  in  a  prosecution  for  selling  liquor 
to  a  common  drunkard  that  the  sale  complained  of  was  made  by 
the  clerks  of  the  defendant  and  he  offered  evidence  to  show  that 
he  had  given  such  clerks  specific  directions  to  sell  no  liquors  to 
common  drunkards  it  was  held  that  such  evidence  was  admissible.11 
To  entitle  evidence  of  this  character,  however,  to  any  particular 
weight  it  should  also  appear  that  the  instructions  were  given  by 
the  principal  in  good  faith.12  And  where  a  defendant  attempts 
to  absolve  himself  from  liability  for  sales  made  by  his  servants 

~\Yashington. — State  v.   Shelton,   16  Commonwealth      v.      Coughlin,      182 

Wash.    590,    48    Pac.    258,    49    Pac.  Mass.   558,   GO   N.   E.   207;    Common- 

1064.  wealth  v.  Stevens,  155  Mass.  291,  29 

9-  Florida.— Baeumel    v.    State,    26  N.    E.    508;    State   v.    McCance,    110 

Fla.   71,   7   So.   371.  Mo.  398,   19  S.  W.  648. 

Georgia. — Hines    v.    State,    93    Ga.  H«  Barnes  v.  State,  19  Conn.  398. 

187,     18     S.     E.     558,     followed     in  Two  judges  dissenting  The  court  said 

Mitchell   v.   State,   97  Ga.  213,  22  S.  in    this    case:     "We    are    aware,    as 

E.  386.  already     intimated,     the     master     is 

Illinois. — Noecker     v.     People,     91  sometimes    made    responsible    civilly, 

111.   468 ;    Harbaugh   v.   City  of  Mon-  for    the    servant's    misconduct.  *  *  * 

mouth,   74   111.    367.  But  the  master  is  never  liable  crim- 

lowa. — State     v.     Grisenhause,     20  inally   for   acts   of   his   servant   done 

Iowa  227.  without  his  consent  and  against  his 

New  Jersey. — State  v.  Terry,  73  express  orders."  Per  Ellsworth,  J. 
N.  J.  L.  554,  04  Atl.  113;  Plainfield  12.  It  is  a  question  for  the  jury 
v.  Watson,  57  N.  J.  L.  525,  31  Atl.  upon  a  consideration  of  all  the  evi- 
1040.  dence  to  determine  whether  the  in- 
West  Virginia. — Miles  v.  State,  5  structions  were  given  in  good  faith. 
W.  Va.   524.  Commonwealth      v.      Coughlin,       182 

1<>.  Barnes  v.  State,  19  Conn.  398;  Mass.    558,   66   N.   E.   207. 


§  688] 


EVIDENCE. 


733 


on  the  ground  that  they  violated  his  instructions  to  them,  evid 
of  previous  offenses  of  the  same  character  is  admissible.13     And 
evidence  of  previous  general  instructions  is  not  material  where  it 
is  shown  that  the  particular  sale  charged  was  made  with  the  de- 
fendant's knowledge  and  approval." 

§  688.  Sale  by  an  agent — evidence  showing  may  be  sufficient. 

Evidence  of  a  sale  by  an  agent  or  employee  of  the  defendant  i- 
in  many  cases  regarded  as  sufficient  proof  of  a  charge  of  unlawful 
selling  by  the  defendant.15  This  statement,  however,  is  subject 
to  the  qualification  that  it  should  also  appear  that  there  was  a 
consent  to,  knowledge  of,  or  acquiescence  in  the  sale  either  expr<  - 
or  implied.16  And  it  should  also  appear  that  the  one  by  whom 
the  sale  was  made  was  in  fact  an  agent  or  employee  of  the  defend- 
ant though  such  relation  may  be  inferred  from  evidence  of  consent 
to  a  knowledge  of  sales  by  such  person.17     But  the  fact  of  the  em- 


13.  Stale  v.  Sodini,  S4  Minn.  4  11, 
87  N.  W.  1130,  so  holding  in  a  prose- 
cution  for   keeping  open   on   Sunday. 

14.  State  v.  Mueller,  38  Minn. 
497,   38  N.   W.   691. 

15.  Connecticut. — State  v.  Cur- 
tiss,  (i'.t  Conn.  86,  36  All.  1014. 

Florida.— Hiers  v.  State,  52  Fla. 
25,  41   So.  881. 

Indiana. — Moliban  v.  State,  30 
[nd.  266. 

Iowa.— State  v.  O'Malley,  132 
Iowa   696,    109   X.  W.  491. 

Massachusetts. — ( lommonwealth  v. 
Lyette,  1  is  Mass.  130,  19  N.  E. 
26. 

Michigan. — People  v.  Possing,  137 
Mich.   353,  100  N.  W.  396. 

Ohio. — Parker  v.  State,  4  Ohio  So. 
563. 

Texas.— Clark  v.  Stair,  40  Tex.  Cr. 
127,  49  S.  W.  85. 

us.  Alabama. — Daniel  v.  Stale 
149  Ala.   44.  43  So.  22. 

Arkansas. — Beane      v.      Slate,      72 


Ark.   368,  80  S.   W.   573. 

Indiana. — Wreidt  v.  State,  48  Ind. 
579. 

Iotca.— Goods  v.  State,  3  G.  Greene 
566. 

Massachusetts. — Commonwealth     v. 
Hayes,  145  Mass.  289,  11  X.  E.  151  ; 
Commonwealth    v.    Brianl.    1  12    M 
463,  8  X.   E.   338. 

Ohio.— Parker  v.  State,  4  Ohio  So. 
5G3. 

The  owner  of  a  dramshop  cannol 
be  convicted  of  unlawfully  keeping 
it  open  on  Sunday  without  proof  thai 
it  was  kept  open  with  his  knowledge 
and  consent.  Beane  v.  State.  ~i 
Ark.   368,  80   S.   W.   57o. 

it.  Alabama. — Perkins  v.  State, 
92  Ala.  66,  9  So.  536. 

Indiana. — Anderson  v.  State,  39 
Ind.  553. 

Massachusetts. — Commonwealth  v. 
Keenan,  152  Mass.  9,  25  \.  E.  32. 

Missouri. — State  v.  Quinn,  4n  Mo. 
App.   573. 


734  EVIDENCE.  [§  688 

ploymcnt  of  a  person  may  be  inferred  from  the  relative  situation 
of  the  parties,  and  the  nature  of  the  employment  without  proof 
of  any  express  employment  either  verbal  or  written.18  And  where 
the  evidence  showed  that  the  sale  of  liquor  was  made  by  the  wife 
of  the  defendant,  it  was  competent  to  show  the  frequency  of  such 
sales  by-  the  wife  as  this  afforded  an  inference  that  the  defendant 
kept  such  liquor  at  his  store,  and  that  in  making  such  sales  the 
wife  acted  as  his  agent.19 

New   Hampshire. — State  v.   Foster,       55  Am.  Dee.  191. 
23   N.  H.  348,  55  Am.  Dee.  191.  19-  Guarreno    v.    State,    148    Ala. 

18.  State  v.  Foster,  23  N.  H.  348,       637,  42  So.  833. 


INDEX. 

REFERENCES  ARE  TO  SECTIONS. 


A. 

ABANDONMENT.                                                                                             section 
of  premises,  exemption  from  consents 257 

ABATEMENT. 

See  Injunction  and  Abatement. 

ABUSIVE  LANGUAGE. 

as  an  element  of  wife's  damages 482 

ACCESS. 

of  officials  to  premises,  ordinance  as  to 171 

ACCIDENT. 

suspending  occupation  of  premises 312 

ACCOUNTS. 

time  of  settling  of,  by  town  agent n  98 

ACTION. 

on  bonds,  generally 363 

ACTUAL  DAMAGES. 

must  be  shown  to  recover  exemplary n  490 

ADMINISTRATOR. 

right  of,  under  license  to  deceased 292 

ADOPTION. 

of  local  option.     See  Local  Option  Laws. 

ADULTERATION. 

act  to  prevent,  where  inspector  not  appointed n  129 

of  liquor,  stai  ntts  providing  for  inspection  of 130 

of  liquor,   statutes   against 131 

no  defense  to  action  for  liquors  sold n  131 

statute  designating  cereals  to  be  used  in  malt  liquor 132 

735 


736  INDEX. 

ADVERTISING.                                                                                            section 
stat  utes   as   to 

AFFIDAVIT. 

required    of   applicant,   statements   in    246,  n  247 

incompetent  to  prove  petitioners  not  freeholders n  249 

accompanying  petition  for  revocation n  317 

verifying-  complaint  in  proceeding  to  revoke n  317 

AGE. 

entry  in  family  Bible  as  showing n  352 

AGENT.     See  City  agent,  State  agent,  Town  agent. 

of  owner  may  sign  consent 255 

violation  of  law  by,  as  ground  for  refusing  license 284,  285 

sale  by  unlicensed  member  of  firm  not  sale  by n  295 

of  owner  of  liquor,  no  defense  that  was  that  of,  forfeiture. .  .   548 

of  railroad,  testimony  by,  as  to  delivery  of  liquors 671 

of  city  or  town  to  purchase  and  sell 96,  97,  98,  99 

licensee  may  sell  by 291 

of  license,  acts  by,  bond 356 

violation  of  instructions  by,  civil  damages 436,  437 

sales  by,  civil  damages 436,  437,  438 

owner  bound  by  knowledge  of,  civil  damages 442 

evidence  as  to  violation  of  instructions  by 687 

evidence  showing  sale  by,  may  be  sufficient 688 

AGRICULTURAL  FAIR. 

excluding  traffic  within  certain  distance  of 103 

ALCOHOL. 

where  declared  by  statute  to  be  intoxicating 9 

judicial  notice  that  it  is  intoxicating 17 

intoxicating  element  in  intoxicatng  liquor 17 

defined   17 

not  in  common  parlance  a  spirituous  liquor 17 

not  ardent  or  vinous 17 

as  an  ingredient  of  medicine 37-42 

proportion  of,  in  medicines,  as  factor 38 

fruit  preserved   in n  83 

per  cent  of  in  liquor,  evidence  showing 674 

ALCOHOLIC  LIQUOR. 

brandy  is 26 

peach  brandy  is n  26 

ALDERMAN. 

not  police  official  within  license  statute 240 

board  of,  suspension  of  rules  by,  in  granting  license 277 


INDEX.  737 

ALE.  sec  i  row 

defined  18 

a  malt  liquor,  judicial  notice IB 

included  in  term  "  strong  or  spirituous  liquors  " ]  - 

not   a   spirit  uous   liquor 18 

"ALL  DAMAGES." 

as  used  in  bond  construed n    1 .;:, 

ALLEGATIONS. 

in   petition   for  license 242 

in  petition  for  revocation  of  license 317 

answer  in  proceedings  to  revoke 318 

in  action  on  bond :;r,.-, 

of  execution  in  action  on  bond,  effect  of n  365 

in  petition  for  local  option  election 381 

See  Indictment  and  information. 

ALTERCATION. 

intoxicated   person   killed   or   injured   while   engaged   in,   civil 

damages    432 

AMENDMENT. 

to  statute,  substituting  "intoxicating"  for  "spirituous"....      70 

to  statutes,    construction    of 70 

to  petition  for  license 247 

to  remonstrance 264 

of  complaint,  civil  damages n  457 

of  petition  for  abatement 625 

AMOUNT. 

of  business  as  basis  for  taxation 17»i 

of  fee,  power  of  legislature  as  to 195 

of  license  fee,  powers  of  city  as  to 213,  214,  215,  216,  217 

of  fee,  discretion  of  municipal  corporation  as  to 215 

of  bond 348 

ANALYSIS. 

showing  per  cent   of  alcohol  in  liquor — evidence 674 

ANNEXATION. 

of  territory  to  city — ordinances  158 

ANSWER. 

in   proceedings  to   revoke 318 

in  action  for  penalty 5GS 

APARTMENT. 

given  to  person  to  qualify  him  as  signer  of  petition n  250 


738  INDEX. 

APPEAL.  SECTION 

remonstrances   265 

from  action  of  licensing-  board  having-  discretionary  power. . . .   274 

none  from  order  overruling  remonstrance n  275 

from  license  board,  no  formal  pleadings n  276 

from  license  board,  transcript  of  evidence  on n  276 

from  license  board,  bond  on n  276 

from  order  for  transfer  of  license n  300 

refusal  to  revoke,  contention  that  as  to  order  of  reference.  . . .   323 
statute  as  to,  search  and  seizure 502 

APPEARANCE. 

waiver  of  defects  in  notice  of  seizure  by 537 

not  waiver  of  jurisdictional  defects,  search  and  seizure 537 

effect  of,  injunction,  decree,  contempt 635 

APPLE  BRANDY. 

intoxicating,    judicial    notice 26 

APPLICANT. 

witnesses  as  to  fitness  of n  240 

for  license,  as  to  character  of 241 

statements  in  petition  for  license  as  to 245 

APPLICATION 

for  license.    See  Petition. 

to  town  agent  for  liquor n  98 

in  writing-  for  liquor  may  be  required 128 

for  hotel  license,  to  be  signed  by  freeholders 234 

for  removal  permits 239 

for  license  must  possess  qualifications 240 

showing  applicant  not  a  proper  person 241 

for  license,  necessity  of  notice  of 251 

for  license,  necessity  of  publication  of  notice  of 252 

for  license,  sufficiency  of  notice  of  publication  of 253 

for  license,  mandamus  to  enforce  action  on 273 

false  statements  in  revocation 311 

for  license,  statements  in,  strictly  construed  against  applicant..  311 

for  liquor,  as  evidence 669 

APPROVAL. 

of  bond 342 

of  bond,  power  of  board  as  to 343 

"ARDENT  SPIRITS." 

defined  11 

alcohol,  not 17 

ARREST. 

warrant  of,  and  search  warrant  in  one  instrument 520 

of  person  having  liquors  in  possession,  search  and  seizure....  533 

without  warrant,  search  and  seizure 534 


INDEX.  7:;!» 

ARTICLES.  sector 

found  on  promises  as  evidence  of  keeping  for  unlawful  sale...    682 

ASSAULT. 

<i\il  damage  act  as  to  constitutional 420 

by  intoxicated  person  who  is  Killed,  civil  damages 4:;2 

by  husband,  action  l>y  wife 483 

by  intoxicated  person,  recovery  for 4'.i7 

ASSESSMENT. 

of  taxes.    See  Taxes. 

ASSIGNEE 

of  liquor  tax  certificate  as  party  to  proceedings  to  revoke....  319 
of   certificate   may   be    allowed    to    intervene,    proceedings   to 

revoke     320 

of  liquor  tax  certificate,  violations  by  assignor n  335 

of  liquor  tax  certificate,  right  to  rebate,  New  York 336 

in    bankruptcy,    injunction    against    620 

ASSIGNMENT. 

of  license,  can  make  none 298 

of  liquor  tax  certificate  in  New  York 299 

of  license  in  Pennsylvania 300 

ATTACHMENT. 

of  license 301 

as  mode  of  recovering  penalty 562 

for  contempt  of  court  injunction 630 

ATTORNEY. 

persons  may  remonstrate  through 262 

error  by  in  signing  name  to  remonstrance n  262 

appearance    by,  waiver    of    proper    notice    of    proceedings    to 

revoke   322 

board  of  excise  cannot  delegate  power  to  sue  for  penalty  to..   5G0 

B. 

BAILEE. 

liquor  in  hands  of,  search  and  seizure 506 

BANKRUPTCY. 

injunction  against  assignee   in 620 

BAR. 

in   place    as    evidence 671 


740  INDEX. 

BAR  FIXTURES.  section 

rights  of  dealer  as  to n  192 

right  to  seize,  search  and  seizure 516 

BALL  GROUND. 

license  to  sell  on 293 

BALLOT  BOXES. 

local  option  election 401 

BALLOTS. 

local  option  election 401,  402 

BARKEEPER. 

licensee    may    sell    by 291 

BARROOM. 

denned    15n 

BARTENDER. 

sales  by,  civil  damages 436,  437,  438 

BAY  RUM, 

not  within  statute 37 

BEER. 

where  declared  by  statute  to  be  spirituous  and  intoxicating.  .      10 

a  malt  liquor 19 

fermented    liquor,   judicial    notice 19 

defined 19 

whether  intoxicating,  judicial  notice 20,  21,  22,  23 

statutes  as  to  inspection   of 130 

internal  revenue  stamps  on  kegs  as  evidence 675 

BEER  CELLAR. 

ordinance  as  to  women  in   162 

BEER  FAUCET. 

seizure  of,  search  and  seizure 516 

BEER  GARDEN. 

as  a  nuisance 618 

BELL  PUNCn. 

to  keep  count  of  drinks,  statute n  176 

BEVERAGE. 

compounds  sold   1o  be  used   as 39 

liquor  to  be  drank  as,  allegation  as  to,  indictment 644 


INDEX.  741 

BILL.  1ION 

from  wholesaler  as  evidence f'~  I 

of  purchases  as  record n  98 

BILLIARD  ROOM. 

ordinance  as  to  women  in 162 

BITTERS. 

when    intoxicating n  38 

purchased  to  be  drank  as  beverage 39 

whether  intoxicating,  evidence  of  effect  of n  674 

BLACKBERRY  WINE. 

whether  spirituous,   question   for  jury 35 

BLANKS. 

effect  of  in  bond 346 

BLOCK. 

in   consent     statute   defined 254 

BOARD  OF  ALDERMEN. 

suspension  of  rule  by  in  granting  license 277 

BOARD  OF  EXCISE. 

cannot  delegate  to  attorney  power  to   sue  for  penalty 560 

BOARD  OF  SUPERVISORS,  power  to  impose  license  tax 203 

BOARDS.     See  Licensing  boards  and  officials. 

BOND. 

may  be   required    n  8" 

to  keep   "  open  house  " n  109 

when  city  no  power  to  take 210 

on  appeal  from  action  of  license  board n  276 

where  a  bondman  disqualified,  licensee  not  discharged 339 

where  new  bond  required,  sales  before  given 339 

statute  not  pen.  rally  applicable  to  druggists 339 

where  required  by  law 339 

extenl  of  liability  on  generally 34° 

construction  of,  generally 340 

construed  to  effectuate  intention  of  parties 340 

liability  to  criminal  prosecution  not  defense 340 

sureties"    liability    limited    by   terms  of 340 

takes  effect  from  date  of  filing n  340 

effect   of   repeal   of  law 341 

approval    of 34~ 

approval  of  prerequisite  to  liability 

filing    of 

mandamus  to  compel  approval 343 

where  board  has  discretion  as  to  approval  of 343 


742 


INDEX. 


BOND— Continued.  SECTION 

power  of  boards  as  to  filing 343 

power  of  boards  as  to  approving 343 

substantial  compliance  with  statute  as  to  conditions  sufficient.  344 

need  not   strictly  conform   to   statute    344 

recitals  in   one  binding    345 

recitals   in    345 

effect   of  misrecitals  in    345 

penalty  left  blank  in   346 

effect    of    blanks    ••   346 

as    to    sureties    347 

amount   of   in   nature   of  penalty    348 

amount  of   348 

condition   against   violating   statute,   conviction 349,  350 

necessity  of  a  conviction  for  violation  of  law  350 

conviction  procured  by  testimony  of  special  excise  agents   . .   350 

condition  as  to  gambling,  nickel  slot  machine 351 

conditions  as  to  gambling   351 

as  to   sales  to  minors    352 

where  statute  prohibits  allowing  minor  to  enter  and  remain, 

evidence   held   insufficient 352 

action  of  debt  as  well  as  scire  facias  may  be  brought  on...n  353 

as   to   sales   on   Sunday    353 

in  case  of  licenses  to  hotels    354 

hotels,  not  to  permit  premises  to  become  disorderly 354 

as  to  payment  of  fines  and  costs   355 

of  pharmacist,  act  done  by  clerk 356 

acts  by  agent  of  licensee   356 

no  liability  where  license  void  from  inception    357 

false  statements  in  application   357 

surety  not  liable  after  surrender  of  certificate    358 

conditions  not   required  by  law    359 

liability    for    judgment     360 

only   binding   as   to   place   named    361 

release    of    liability,    discharge    of    sureties,    collateral    agree- 
ment         36~ 

successive  action  may  be  brought   363 

must  pursue  remedy  on  given  by  statute   363 

act  ion   on   not  a  criminal   one    363 

judgment    in    ad  ion    on    363 

actions    upon    generally     •  •   363 

not  payable  as  statute  provides   n  364 

parties    to    actions    on    364 

pleading    305 

effect    of  allegation   of  execution    n  365 

evidence     in     actions    on     366 

burden   of  proof  in   action   on    366 

sureties  can   not  set    up  their  neglect  as  defense 367 

right   to  question    validity  of    367 

as  to  signing  of   n  307 


IND]  743 

BOND— Continued.  SECTION 

want    oi   seal   not   defense    n  :;('7 

words   "  all   damages "    is   construed    n  435 

when  action  may  be  one,  civil   damages '"'■ 

st at ntf  as  to,  search  and  seizure 

action  for  breach  of  not  for  a  penalty  or  forfeiture  at  com- 
mon  law    " 

liability  of  sureties  on  for  penalty    566 


BOOTHS 


ordinances    as    to 


160 


"  BOROUGH." 

as  used  in  New  York  law  construed    n  175 

BOTTLES. 

in    place    as   evidence    °71 

as  evidence  of  keeping  for  unlawful  sale    682 

BOTTLING  PLANT. 

dispensary  board  may  maintain n     91 

BONA  FIDE. 

freeholders   must    be    -50 

BOUNDARIES. 

of  local  option  district  changed    379 

BRANDY. 

an   alcoholic   liquor    26 

judicial    notice    whether    intoxicating 26 

defined  and  considered 26 

effect   of   putting  cherries   and   fruits   in    27 

BRANDY  CHERRIES. 

effect    of   putt  ing   cherries    in    brandy    27 

BRANDY    FRUITS. 

effect    of   putting   fruits    in    brandy    27 

BRANDY   PEACHES. 

d    oi   putting  peaches  in  brandy    27 

BREACH. 

of  covenant  not  to  sell  liquors,  enjoining  breach  of 

BREWER.     See  Licenses,  Manufacturers,  Taxes. 

subject   to    tax    as    wholesaler    "   178 

right    to    establish    agency    n  17S! 

BREWERY. 

rendered   worthless  by  prohibition   law    

ordinance    imposing    license    fee    on    211 


744:  INDEX. 

BEOTHELS.  section 

prohibiting    sales    in    108 

BUILDING. 

described   in  application  not  erected    n  244 

description  of,  indictment 655 

BURDEN  OF   PROOF. 

to  show  that  beer  is  not  intoxicating 10 

on  one  attacking  validity  of  ordinance    142 

as  to  requisite  number  of  signers  of  petition    n  249 

authority  of  signers  of  remonstrance   262 

remonstrances     266 

defense  non-compliance  with  law   n  340 

an  hotel  keeper  to  show  sale  by  him  was  within  exception.  . .  .  354 

in    action    on   bond    366 

signers    local    option    election     384 

notices   of  local   option   election    393 

sales  to  prohibited  classes,  civil  damages 447 

civil   damage   actions    458,  459 

in   actions   for   penalties    570 

offense  by  dramshop  keeper    668 

offense  by  druggist  668 

rule  generally  as  to  prosecution   668 

intoxicating   character    of    liquor    673 

place   of   offense    676 

as  to  time  of  offense   677 

sales    on    Sunday    678 

keeping   open   on   Sunday    679 

as    to    sales    to    prohibited    classes    684 

as   to    sales   to    minor    684 

as   to    defenses   generally    .  . . 685 

license  or  authority  to  sell   686 

BUSINESS. 

diminished  in  value  by  ordinance    157 

amount   of  as  basis   for  taxation    176 

character  of  as  basis  for  taxation    178 


c. 


CALENDAR  YEAR. 

in  license  statute  construed    297 

CALIFORNIA  BRANDY. 

spirituous   and   intoxicating 26 

CANCELLATION.     See  Liquor  tax  certificate;    Revocation. 


INDEX.  7  1 5 

CAPTION.                                                                                                                           SECTION 
stating    offense    in     645 

CARRIER. 

seizure   of   liquor   in   hands  of    508 

CENSUS. 

as    proof    of    population    n  175 

CENTENNIAL  DAY. 

a  legal  holiday  in  Michigan   117 

CEREALS. 

to  be  used  in  manufacture  of  malt  liquors — designation  of.  .   132 

CERTIFICATE.     See  Liquor  tax  certificate. 

of  town  liquor  agent,  notice   n     98 

required   to   be  annexed   to   application    n  248 

CERTIORARI. 

to   test  validity  of  license    267 

to  review  proceedings  to  revoke    329 

CHAIRS. 

ordinance  as  to    n  141 

CHAMPAGNE. 

a  liquor  within  meaning  of  statute   n     35 

CHARACTER. 

of  applicant,   evidence  as   to 241 

of    applicant    as    a    requisite    241 

CHARITABLE  INSTITUTION. 

excluding  traffic  within  certain  distance  of 103 

(  II. \i: Tl'.K.    See  Municipal  Corporations. 

of  city,  general  law  as  repeal  ins:  provision  of   n     71 

provisions,  repeal  of  by  general  law 150 

of  town  authorizing  it  to  collect    tax    n 

CHATTEL  MORTGAGE. 

license  not  subject  of n  298 

law  as  to  filing  of  does  not  apply  to  assignment  liquor  tax  certificate 

in  New  York o  299 

CHERRIES. 

effect  of  putting  of  in  brandy 27 

CHILDREN.     See  Minor. 

mother  may  join  as  plaintiff tr- 
action by  motber  in  behalf  of 492 

injury  to  means  of  support  of  493 


746  INDEX. 

CHRISTMAS.                                                                                                  section 
a  legal  holiday n  l*7 

CHURCHES. 

excluding  traffic  within  certain  distance  of 104 

ordinance  prohibiting  traffic  within  certain  distance  of 157 

statute  as  to  business  within  certain  distance  of n  194 

as  used  in  license  laws  construed 259 

CIDER. 

where  declared  by  statute  to  be  intoxicating 9 

not  a  spirituous,  vinous  or  malt  liquor 28 

whether  intoxicating  question  for  jury 28 

defined  and  considered 28,  29 

statutes  as  to 30 

CINNAMON. 

essence  of  within  statute n    38 

CIRCULARS. 

advertising  liquor — statute  as  to • 60 

CIRCUMSTANTIAL  EVIDENCE. 

civil  damage  cases 400 

consignment  of  liquors     671 

manner  in  which  place  fitted  up 671 

bar,  glasses  and  bottles  as 671 

generally 671,  672 

habits  of  buyer 672 

number  of  people  frequenting  accused's  place 672 

persons  leaving  accused's  place  in  disorderly  manner 672 

persons  leaving  accused's  place  in  intoxicated  condition 672 

finding  of  liquor  in  possession  of  accused 672 

efforts  to  conceal  liquor 672 

to  show  intoxicating  character  of  liquor 674 

showing  knowledge  and  intent 680 

showing  keeping  for  unlawful  sale 682 

CITIES.     See  Municipal  Corporations. 

population  of  as  basis  for  taxation 175 

classified  for  license,  transferred  from  one  class  to  another n  199 

CITIZEN. 

has  no  inherent  right  to  sell  liquor 77 

petition  for  revocation  in  New  York 319 

action  by  on  bond  in  name  of  state 364 

signer  petition  local  option  election 383 

right  to  recover  penalty °^y 

See  Injunction  and  Abatement 
proceedings  by  to  state  nuisance 624 

CITIZENSHIP. 

when  petition  for  license  should  show 245 


INDEX.  TIT 

CITY  AGENTS.  flfi       **™°» 

authorized  to  purchase  and  sell  liquors  >6,  07,  m, 

a.  n  08 

not  an  officer 

CIVIL  DAMAGE  ACTS. 

<Jt    x.        ...         .  420 

constitutionality   ot 

fixing  minimum  sum  for  sale  to  minor 

as    to    assault    constitutional     

no  right  to  damages  at  common  law 4 

n  4 '. '  1 
not    a    penal    statute    

strictly    construed 

construction  of  generally 

not  applicable  where  liquor  given  as  act  of  hospitality 4~~ 

rules  of  construction  of  applied 

"  or    other    persons "    construed    

"  person  aggrieved  "  construed 

expenditures  and  loss  of  time  as  element  of  damages 423 

nor    extra-territorial    effect 

license  no  protection  against • 

effect  of  repeal  of,  subsequent  act  as  to  notice -^ 

instruction  as  to  sale  by  druggist n 

in  case  of  murder  causing  loss  of  support   

427 
sale  must  be  unlawful ~ 

recovery  for  loss  of  horse 

negligence  and   contributory  negligence 

Wife  thrown  from  carriage 

intoxication  must  be  proximate  cause 

in  case  of  suicide 

person  unable  to  care  himself  killed  by  accident 

in  case  injury  while  quarrelling 

proximate  cause,  application  of  rule 

action  by  father,  son  killed  by  railroad  train 

proximate  cause,  where  intoxicated   person   commits  a   crime 
and  is  arrested 

proximate  cause,   intoxicated   person   injured   or  killed   as   re- 
sult of  altercation   

proximate  cause,  question  for  jury 

sale  must  have  contributed  to  or  caused   intoxication,  proxi- 
mate cause,  must  be  sale  to  individual  causing  injury    .... 

sale  by  defendanl  need  not  be  sole  cause 

words  "all  damages"  in  bond  construed n  *35 

sales  by  agent  of  defendant ■ 

violation  of  insl  rud  ions  by  agent 4;''-  ■  * 

sales  by  agent  of  defendant,  exemplary  damages 4 

sal,.  by  agent,  sale  of  business  to  aim  no1  bona  tide 4 

joint  liability  of  defendants 

joint  liability  of  defendants,  but  one  satisfaction 4,u 

pleading  in  action  against  owner  of  premises "  4 

question  of  knowledge  of  owner  of  premises  for  jury n  4 

making  owner  or  lessor  liable,  construction  of 441 


748  INDEX. 

CIVIL  DAMAGE  ACTS— Continu  SECTION 

owner  bound  by  knowledge  of  agent 442 

owner  or  lessor,  exemplary  damages 443 

when  knowledge  on  part  of  lessor  must  be  shown   443 

extent  of  lien  against  owner 444 

notice  not   to   sell 444,  445 

service  of  notice  not  to  sell 445 

pleading,  notice  not  to  sell n  445 

allegation  of  service  of  notice  not  to  sell n  445 

statute  as  to  notice,  where  right  of  action  accrued    n  445 

sales    to    prohibited    classes    generally,    minors,     intoxicated 

persons    447 

burden  of  proof,  sales  to  prohibited  classes 447 

sales  to  minors,  action  by  parents  generally 448 

sales  to  minor,  action  by  father 449 

sales  to  minors,  action  by  mother 450 

sales  to  minors,  consent  of  parent  as  bar 451 

sales  to  minors,  exemplary  damages 452 

sales    to    habitual    drunkards     453 

habitual  drunkards  denned    n  453 

necessity  of  knowledge  of  person  being  habitual  drunkard,  n  453 

sales  to  intoxicated  persons 454 

knowledge  of  intoxication  presumed n  454 

charge  as  to  who  is  an  intoxicated  person n  454 

sale  to  intoxicated  person,  pleading n  454 

cause  of  action  not  assignable 455 

who  may  bring  action  generally 455 

joinder   of   parties 456 

action  may  be  on  bond 456 

against  whom  action  may  be  brought  generally 456 

complaint  or  declaration 457 

sufficiency  of  pleading  in  particular  cases n  457 

misjoinder  of  counts n  457 

evidence    generally 458 

evidence,  proof  by  plaintiff  preponderance  sufficient 459 

evidence,  facts  established  by  circumstances 460 

presumption  as  to  sale n  460 

evidence  generally  showing  sale 461 

evidence,    life    tables 462 

injury  to  the  feelings,  menl  al  anguish,  disgrace 463 

medical    attendance   as   element   of   damages    464 

exemplary  damages  generally 465 

that  sale  a  criminal  offense  immaterial n  465 

exemplary  damages,  selling  without  a  license n  465 

exemplary    damages,    evidence    of    threatening    language    or 

vulgar    conduct n  405 

statutes  as  to  exempla  ry  damages 466 

exemplary  damages,  ground   for  awarding,  right  to 467 

exemplary  damages,  no  breach  of  peace 468 

excessive    damages 469 


INDEX.  749 

CIVIL  DAMAGE  ACTS— Continued.  section 

injury  to  person  or  property  generally    *™ 

statute  as  to  allowance  tor  taking  care  of  persona «■> 

means  of  support,  where  legal  obligation 

to  means  of  support  generally,  action  by  wife 4..: 

474 

474 


iii|iirv   Id   iiii'Miis  in   Mi|i|j"'i   h" J •> 

means  of  support,  righl   of  action   generally,  defense 


wife  must  show  Lawful  marriage 

means  of  support,  action  by  wife,  effect  of  divorce «6 

means  of  support,  action  by  wife,  pleading '" 

means  of  support,  anion  by  wife,  evidence  of  earnings  and 

financial    condition " ' 

means  of  support,  action  by  wife,  evidence  as  to  prior  conduct.  479 
action  by  wife,  evidence  as  to  age  and  number  of  children....  480 
means  of  support,  action  by  wife,  measure  of  damages,  evi- 

481 

dence 

mitigation  of  damages,  action  by  wife  n  481,  n  485 

action  by  wife,  evidence  of  threats 

action  by  wife,  evidence  of  abusive  language   4 

action  by  wife,  physical  suffering,  threats,  abusive  language..   4 

action  by  wife,  assault  by  husband *** 

action  by  wife,  injury  to  property •  •  ■ 

whether  wife  contributed  to  injury  of  husband  question  for 

n  485 

jury    

action  by  wife,  consent  or  acquiescence  of 485,  486 

widow  a  "  person  "   within   meaning   of n 

action  by  widow,  death  of  husband  487>  4 

action  by  widow,  husband  killed  by  intoxicated  person 4S9 

action  by  wife,  exemplary  damages 4j>° 

means  of  support  of  mother,  sale  to  son 

action  by  mother  in  behalf  of  her  and  children    492 

joint  action  by  mother  and  children    **» 

complaint  in  action  by  minors n 

means  of  support,  action  by  children 

action  by  husband 

death   of  intoxicated  person,   no  recovery  by  personal  repre- 
sentatives      

,     -  .    496 

action  by  intoxicated  person 

assault  by  intoxicated  person 


CIVIL  PROCEEDINGS 

whether 


proceedings  for  forfeiture  are 500,  546 


CLAIMANTS 

of  liquors,   seizure,   waiver  of  defects  by  appearance    537 

CLAIM  AND  DELIVERY. 

.       ,  544 

to  recover  liquor  seized 

CLASS. 

legislation.  Local  opt  ion  law  not 


750  INDEX. 

CLASSIFICATION.  section 

by  population   for  taxation 175 

on  amount  of  business  for  taxation 176 

based  on  different  kinds  of  liquor  for  taxation 177 

of  wholesalers,  retailers  and  manufacturers  for  taxation 178 

for  license,  cities  transferred  from  one  class  to  another....   n  199 
municipal  tax  based  on  amount  of  sales 214 

"  CLOSED." 

as  used  in  statute   construed n  118 

CLOSING. 

of  saloons  on  certain  days 117,  118,  119 

designation   of   hours   for 120 

of  saloon,  ordinance  as  to 146 

of  places  on  Sunday  where  near  beer  sold,  ordinance n  164 

on    Sunday,    ordinance     164 

other  than  Sundays,  ordinance 165 

municipal  power  to  designate  hours  of 166,  167,  168 

CLUBS.    See  Social  Clubs. 

statute  as  to  sales  by 129 

organized  to  evade  law,  revocation  license  to 315 

C.O.D. 

liquors  shipped,  search  and  seizure  laws   510,  511,  513,  515 

COLLATERAL  AGREEMENT. 

another  person  to   sign  bond 362 

COLLATERAL  ATTACK. 

of  license  where  no  notice  of  application  given 251 

validity    of    license 267 

COLLECTION. 

of  tax,  statute  may  provide  for n  173 

COLLECTOR. 

of  internal  revenue — copy  from  books  of  as  evidence   669 

COLLECTOR  OF  CUSTOMS. 

in  Alaska  proper  petitioner  for  search  warrant    522 

COLLEGES. 

excluding  traffic   within   certain   distance   of    104 

COMMERCE. 

power  of  state  to  pass  laws  affecting 48,  49 

power  of  state  as  to,  rules  stated  in  Vance  v.  Vandercook  ....      49 

power  of  state  as  to  interstate  shipments 50 

laws  affecting  sales  in  original  packages  prior  to  Wilson  Act.  .      51 


INDEX.  751 

COMMERCE— Continued.                                                                               section 
statute  forbidding  keeping  of  liquors  for  purpose  of  sale  in  an- 
other   stale 52 

state  cannot    forbid   shipment    into   state 53 

Wilson  Act,  effect  and  construction  of 54,  55,  57 

COMMERCIAL  PAPER. 

legal    holidays    for n   117 

COMMISSIONERS  OF  EXCISE.     See  Licensing  Boards  and  Affiants. 

COMMON  CARRIER. 

statute  limiting  right  of  to  bring  liquor  into  state 53 

city  cannot  prohibit  from  bringing  liquor  into  limits  without 

license     n  211 

seizure   of   liquor   in   hands   of    508 

COMMON  COUNCIL.     See  Municipal  Corporations. 

courts  cannot  control  discretion  of 149 

COMMON  LAW. 

liquor  traffic  legitimate  at 76 

complaint  for  penalty  framed  under n  567 

COMPENSATION. 

none  for  property  diminished  in  value  by  prohibition 86,  87 

COMPLAINT.     See  Search  and  Seizure  Laws. 

to  recover  money  paid  for  license n  199 

civil  damage  actions 457 

search  and  seizure 517 

defacement  of,  search  and  seizure n  517 

not  supported  by  verdict,  search  and  seizure n  517 

sworn  complaint,  search  and  seizure 518 

and  warrant  in  one  instrument,  search  and  seizure 520 

and  warrant,  variance  between,  search  and  seizure 521 

search  and  seizure,  allegations  as  to  liquors 524 

search  and  seizure,  allegation  of  intent,  keeping  for  unlawful 

sale     525 

search  and  seizure,  allegations  as  to  owner  or  keeper 526 

description  of  place  to  be  searched 527,  528,  529 

and  warrant,  allegations  in,  seizure  without    warrant 532 

in  action  for  penalty 567 

disjunctive    averments    in    646 

See  Indictment   and   information. 
COMPOUNDS. 

test  whether  intoxicating 38 

where  sold  to  be  used  as  a  beverage 39 

where    formula    prescribed    by    standard    dispensatory 37 

Containing    alcohol    considered     37-42 

when  held  to  be  within  stal  ute 40 


752 


INDEX. 


COMPOUNDS— Continued.  section 

sold  in  good  faith 40 

whether  intoxicating',  question  of  fact 41 

whether  intoxicating  liquor,  conclusion 42 

CONCEALMENT. 

of   liquor,   evidence   of   efforts   towards    672 

as  evidence  of  keeping  for  unlawful  sale 682 

CONDEMNATION.    See  Search  and  Seizure. 

CONDITIONS. 

in  bond.    See  Bond. 

affecting  liquor  traffic.     See  Police  Power,  State. 

as  to  exercise  of  right  under  license 194 

as  to  license,  power  of  city 219 

as  to  revoking  license,  power  of  city 220 

of  bond,  substantial  compliance  with  statute  sufficient 344 

of  bond  against  violating  statute 349 

as  to  gambling,  bond 351 

of  bond  as  to  sales  to  minors   352 

of  bond  as  to  sales  on  Sunday   353 

of  bonds  given  by  hotels 354 

of  bond  to  pay  fines  and  costs    355 

in  bond  not  required  by  law 359 

of  bond  to  pay  judgment  for  damages 360 

CONDITION  PRECEDENT. 

obtaining   of   license 228 

CONDUCT. 

of  defendant  as  evidence  of  keeping  for  unlawful  sale 682 

CONGRESS. 

may  make  it  an  offense  to  sell  to  Indians 43 

power  of  generally  as  to  liquors 43 

CONFISCATION. 

of  liquor.     See  Search  and  Seizure  laws. 

CONJUNCTIVE. 

list;  of  in  indictment  where  statute  is  disjunctive   647 

CONSENT. 

of  owners  of  dwelling  houses,  statute  as  to 102 

of  common  council  may  be  required  by  ordinance  for  license.  219 

of  property  owners,  a  citizen's  may  be  required  for  license ....  219 

where  property  owner  paid  for n  250 

word    "  block  "    construed 254 

of  owners  within  a  certain  distance 254 

nunc  pro  tunc  cannot  be  filed 254 

to    license    generally 254 


index.  753 

CONSENT— Continued.  section 

right  to  withdraw n   254 

of  owner  of  fee D  254 

sufficiency    of   generally    255 

\\  ho    may    sign 255 

owners  of  dwellings,  flat  a  dwelling 25G 

statement  of,   Iowa 380 

of  parents  as  bar  to  action  for  sales  to  minors 451 

of  wife  as  defense  to  civil  damage  action 485,  486 

of  owners  of  dwellings,  sufficiency  and  necessity  of 25G 

of  majority  of  police  commissioners n  254 

riglit  to  traffic  without  not  extinguished  by  local  option   ..   n  257 

exemption  from,  abandonment 257 

exemption  from,  New  York 257 

nearest    entrance 258 

of  class  of  persons  within  certain  distance 258 

charging  want  of,  sale  to  minor 652 

CONSIGNMENT. 

of  liquors  as  evidence r'~l 

CONSIGNOR. 

suit  by,  that  liquor  seized  in  hands  of  carrier  a  defense 508 

CONSTITUTIONALITY  OF  LAWS.  See  Civil  Damage  Acts;  Construc- 
tion of  Laws;  Fourteenth  Amendment;  Injunction  and  Abate- 
ment;  Municipal  Corporations;  Ordinances;  Search  and  Seizure. 

taxation  of  traffic.     See  Taxes. 

of   statute   designating   what  are   intoxicating  liquors n  9 

as  affected  by  Fourteenth   Amendment    44,    15 

prohibitory  statute  not  ex  post  facto 46 

prohibitory  statute  does  not   impair  obligation   of  contracts.  .      46 

as  affected  by  United  States  Constitution   generally    46,  47 

stat  ute  giving  discrel  ion  as  to  licenses 47 

statute  as  to  keeping  liquor  with  intent  to  sell 47 

statute  as  to  license  not  taking  of  property  without  due  proc- 
ess   of    law    47 

affecting    commerce     48,  49,  50,  51 

affecting  sales  in  original  packages,  prior  to  Wilson  Act 51 

statute  discriminating  by  tax  against  products  of  other  states.     51 
keeping  liquor  for  purpose  of  sale  in  another  state,  law  as  to.      52 

forbidding   shipments    into    state 53 

under    Wilson    Act 55 

limiting  right  to  order  from  another  state 55,  56 

as  to  place  of  delivery  and  sale 58 

as    to    soliciting    orders 59 

as  to  right    to   advertise    60 


754  INDEX. 

CONSTITUTIONALITY  OF  LAWS— Continued.  section 

statute  as  to  advertising-  by  circulars  or  posters 60 

cannot  be  questioned  by  one  not  affected 75 

prohibiting    traffic 83 

requiring  license  to  keep  liquors  in  one's  possession 85 

prohibiting  possession   of  liquors 85 

prohibition,  property  diminished  in  value  by SB,  87,  88 

dispensary  laws 90-95 

excluding  liquor  traffic  from  certain  locality 100 

statute  designating  saloon  limits  in  cities  and  towns    101 

confining  liquor  dealer  to  one  place  of  business n  105 

screen    laws 109,  110 

prohibiting  sales  to  certain  classes  of  persons 112 

prohibiting  sales  to  minors 113 

prohibiting  sales  to  women 114 

prohibiting  employment  of  women 115 

designating  hours  for  closing 120 

as  to  quantity 121 

placing  druggist  on  same  footing  with  others n  124 

as  to  sales  by  social  clubs 129 

delegating  powers  to  municipal  corporations   134 

ordinance  prohibiting  traffic  in  portions  of  city 157 

ordinance  prohibiting  women  from  entering 162 

enforcing  payment  of  license   fee 198 

conferring  power  on  city  to  prescribe  limits 221 

as  to  granting  license  within  certain  time  after  remonstrance.  278 

as    to    sureties ' 347 

local  option  laws  generally 368 

local  option  law  not  a  taking  of  property 369 

local  option  not  a  delegation  of  legislative  power 371 

CONSTITUTIONAL     PROVISIONS.       See     United     States     Constitu- 
tional Provisions  affecting  laws;  Search  and  Seizure  laws. 

as  to  title  and  subject  matter  of  act  construed 61 

local  or  special  laws  generally 62 

laws  to  be  general  and  uniform 63 

affecting  right  to  sell  liquor 7-9 

construction  and  effect  of  generally 79 

negative    clauses    self-executing 79 

as  to  licensing  traffic,  taxes 174 

giving-  legislative  power  to   tax  liquor  dealers    177 

as  to  no  license,  applies  to  wholesalers n  178 

as  to  uniformity  of  taxation,  license  fees   189 

taxes  to  be  uniform,  power  of  city  to  license 205 

as  to  mode  of  local  option  election    397 

as  to  local   option 373 

CONSTRUCTION. 

of  ordinances.    See  Municipal  Corporations;  Ordinance. 

of  statutes.     See  Construction  of  Laws. 

grants  to  municipal  corporations.     See  Municipal  Corporations. 


indi.x.  755 

CONSTRUCTION  OF  LAWS.     Bee  the  particular  laws.  I  io.v 

as  to  licenses.    See  License. 

prohibiting  sale  or   manufacture  of   intoxicating  liquor  con- 
stitutional          46 

affecting  interstate  commerce....  48,  49,  50,  51,  52,  53,  54,  55,  56,  57 

;is  to  place  of  delivery  and  sale 58 

as  1o  soliciting  of  orders « 

as   t(»    right    to   advertise 60 

constitutional   provisions  as  to  title  and  Bubject  matter  of  act 

const  rued     61 

should  be  general   and   uniform 63 

as  to  intoxicating  liquors  generally 64 

reference  to  prior  laws 65 

construing  laws  together 65 

word    "town"    in    statute   construed 66 

statute  as  to  devices  for  amusement  or  music  in  saloons 66 

intent    of    legislature 66 

where  statute  judicially  construed  is  re-enacted   66 

where  part  of  act  invalid 67 

rule  as  to  exceptions  in   statutes 68 

statutes   affixing   penalty    strictly,   construed 69 

ride   as   to   amendments  to  statutes    70 

repealing  laws  generally 71 

general  law  as  repealing  provision  in  city  charter n  71 

repeal  by  implication 72 

act  denouncing  two  separate  offenses 73 

political  subdivisions  of  state,  judicial  notice  in  construing...     74 

one  not  affected  by  law  cannot  question  validity 75 

dispensary    laws    90-95 

as  to  entrances 106 

as  to  screens 109,  110 

words  "  no  license  "  construed n  110 

as  to  filing  list    of  names  of  employes 116 

prohibiting  sales  to  certain  classes  of  persons 112 

prohibiting  sales  to  women 114 

closing  of  saloons  on  certain  days 117,  118,  119 

word    "closed"    cons' rued n   118 

as  1"  sales  by  dri  124-128 

as  to   inspection   of   liquors 130 

gent  ral  law  as  repealing  municipal  powers  and  ordinances....   150 

construing    -  and    ordinances   together 152 

as  to  licenses  generally ,'11 

as  to  local   option,   generally :;~:-' 

CONTEMPT. 

when   not    to   resist   search   and    seizure   warrant    518 

:   lire  by  officer  of  liquors  in  custody  of  receiver   540 

proceedings  to  enforce   injunction 

proceedings  to  punish   for,  nature  of,  injunction   

proceedings,  sufficiency  of  information 633 

of  injunel  ion  decree,  w  hat  const  it  utes 634 

of  injunction  decree,  effeel  of  l  court 635 


56  INDEX. 


CONTEST.  section 

local  option  election  not  precluded  by  recount  of  votes. . .  .  n  411 

local  option  election  an  action  in  rem n  411 

of  local  option  election,  nature  of  right,  statutes 412 

of  local   option   to   election,  proceedings 413 

of  local  option  election,  who  may  contest 414 

CONTINUANDO. 

charging    offense    with 658 

CONTEACT. 

license    is    not 186 

statute  declaring  license  void  does  not  impair  obligation  of.   n  192 
obligation  of  not  impaired  by  statute  as  to  revocation n  303 

CONTRIBUTORY  NEGLIGENCE. 

in  civil  damage  cases 428 

CONVERSATIONS. 

evidence  of  as  showing  knowledge 680 

between  defendant  and  internal  revenue  assessor 683 

CONVICTION. 

effect  of,  refusal  of  license 285 

as  ground  for  revocation,  provision  in  license 308 

for  violation  of  law,  revocation 313 

in    revocation   statute   construed 313 

for  violation  of  law,  necessity  of,  liability  on  bond 350 

as  prerequisite  to  abatement 636 

CORDIALS. 

When    intoxicating n  38 

CORN  WHISKY. 

charge  that  is  intoxicating  proper n  34 

CORPORATION. 

nature  of  right  to  sell  conferred  by  charter 77 

included   in   words  "person  or  persons"  in  license  statute....   235 

organized  as  a  social  club,  licenses 235 

license     to 235 

licensing   foreign   corporations 236 

license   to   officer   of,   rights   under 296 

liable     for    penalty 565 


COSTS. 


of    proceedings    to    revoke 328 

bond   condit ioned   to   pay 355 


INDEX.  757 

COUNTY.  section 

prohibiting  sale  of  liquor  in 100 

COUNTY  COMMISSIONERS.     See  Licensing  boards  and  Officials. 

discretion    as    to    license    QOt    reviewable 274 

must   act  in  conformity  with  powers ~77 

cannot  delegate  power  to  license 280 

COUNTY  TREASURER. 

Liability  for  money  paid  for  license  not  issued n  199 

COUNTY  WARRANTS. 

Payment   of  license   fee  with 106 

COURTS. 

reluctant  to  interfere  with  liquor  laws n     82 

CRAB  CIDER. 

not  included   in   term   "  spirituous   liquors,   wine,   ale,   porter, 

beer,   or   any  drink   of   like  nature  " 28 

CREDIT. 


license   issued    on. 


196 


CRIME. 

committed  by  person  while  intoxicated,  civil  damages 431 

CRIMINAL  PROCEEDINGS. 

whether  proceedings  for  forfeiture  are 500,  546 

CRIMINAL  SUIT. 

proceeding  to  recover  property  not 558 

CURTAINS. 

statute   prohibiting  use   of 109,  110,  111 

ordinances   as   to 159>  160 

CUSTODIA  LEGIS. 

liquor  seized  is  in 544 

D. 

DAMAGES.     See  Civil  Damage  Acts,  Exemplary  damages. 

liability    <>f   town   agent   for n     98 

druggist   Dot  liable  for  in  case  of  refusal  to  sell 124 

suit  for,  private  nuisance 618 

DATE. 

for  local  option  election,  failure  to  name 382 


758  INDEX. 

DAY.  SECTION 

alleged  as  time  of  offense  need  not  be  proved 677 

DEATH. 

of  person   signing  petition  local  option   election n  383 

of  son,  injury  to  father's  means  of  support 430 

of  husband,  action  by  wife  for 487,  488,  489 

civil  damage  actions,  life  tables  as  evidence 462 

of  intoxicated  person,  no  recovery  by  personal  representatives  495 

DEBT. 

action  of  for  penalty — nature  of 558 

DECLARATION. 

civil  damage  actions 457 

in  action   for  penalty 567 

DECREE.     See  Judgment. 

in    injunction    proceedings 630 

in  injunction  proceedings,   modification   of 631 

DEED. 

covenant  in  not  to  sell  liquors,  enjoining  breach  of 623 

DEFACEMENT. 

of  complaint,  search  and  seizure n  517 

DE  FACTO  OFFICERS. 

action  by  in  respect  to  licenses 281 

seizure    of    liquors    by 542 

DEFENDANTS. 

joinder   of,   indictment 640 

alleging    name    of,    indictment 641 

DEFENSES.     See  Civil  Damage  Acts.     Good  faith. 

license  from  United  States  no  defense  violation  state  law....      84 
prosecution  for  obstructing  view  of  interior  of  saloon..   110,  111 

in  case  of  sales  to  minors 113 

adulteration  no  defense  to  action  for  liquors  sold n  131 

inability  to   obtain  license  not 229 

refusal  to  issue  license  not 230 

license  to  sell  at  one  place  none  for  selling  at  another 293 

to  revocation,  sale  in  good  faith  not  if  unlawful 310 

surrender  of  certificate  before  discovery  of  violation  not,  re- 
vocation       338 

to  action  on  hand,  liability  for  criminal  prosecution  not 340 

non  compliance  with  law,  bond,  burden  of  proof n  340 


[NDEX.  759 

DEFENSES— font  in  lied.  section 

in  action  on  hotel  keeper's  bonds 

action  on  bond,  act  done  by  agent  of  lice  usee 356 

action  on  bond,  none  that  contains  conditions  not  required.. 

action  on  bond,  breach  not  ;•(   place  given  in  bond 361 

sureties   cannot    set  up  their  neglect  as ' 

want  of  seal  on  bond  not n  367 

indictment  violation   local   option   law 376 

violation  of  instructions  l>y  agenl    not,  civil  damages 436 

that  seller  did  not  know  purchaser  was  one  named  in  notice..  446 

good  faith  in  sale  to  minor,  civil  damages 447 

burden  of  proof,  sales  to  prohibited  classes,   civil  damages..  4  17 

to  action  for  injury  to  means  of  support 474 

to  civil  damage  action,  consent  or  acquiescence  of  wife..   485,  486 

suit  by  consignor,  that  liquor  seized  in  hands  of  carrier  is..  508 

warrant   as  justifying  officer  serving,   search   and   seizure 538 

suit  against  officer  for  illegally  seizing  liquors 540 

previous  conviction  of  owner  of  liquors  not  bar  to  prosecution 

against    liquors 547 

none  that  intent  was  that  of  agent  of  owner,   forfeiture 548 

action  for  penalty,  invalidity  of  ordinance  as  to 555 

action  for  penalty  for  sale  to  minor,  belief  of  defendant  not.  556 

exception  as  to  action  for  penalty,   sale  by   druggist 557 

to  proceeding  to  forfeit  liquor,  act  of  officer  in  seizing.  .    539,  540 

to   actions   for  penalties 571 

charging    class    to    which    belongs 642 

decree  for  injunction  as  bar  to  second  suit 619 

to   proceeding   for   injunction,   pleading   of 626 

to  proceedings  for  injunction  and  abatement  generally 628 

effect  of  discontinuance  of  nuisance 629 

charging    matters    of 650 

to  keeping  open  on  Sunday,  evidence 679 

good  faith   in   making  sale 6*0 

want  of  knowledge,  keeping  for  unlawful  sale 680 

burden  of  proof  as  to 

burden   of  proof  as  to  consent   of  parent   to  sale  to  minor...  685 

burden  of  proof  as  to  good  faith  in  sale  to  minor 685 

burden  of  proof  as  to  license  or  authority  to  sell 686 

evidence  as  to  violation  of  instructions  by  agent 

DEFINITIONS  AND  TEEMS. 

alcohol   defined l~ 

ale  defined   

"ardent  spirits"  defined n 

"bar-room"    denned n   15 

beer    defined I'1 

"block*'   in   consent   statute 

brandy    

cider     

compounds,    tonics    and    medicines    considered 37-42 


7G0  INDEX. 

DEFINITIONS  AND  TERMS— Continued.  section 

"  distilled    spirits  " 7 

"  domestic   distilled   spirits  "   defined n     7 

"  dramshop  "    defined 15,  169 

"  dramshop   keeper  "    defined 15 

"  drinking-  shop  "   defined n  15 

hard  cider   29 

gin   defined   and   considered 31 

"  election  day  "    117 

"  holiday  "    n   117 

dram  shop   169 

habitual    drunkard n  453 

intoxicated  person n  454 

intoxication    defined 14,  n  421' 

intoxicating-  liquors  "  defined  and  considered 3,  4,  5,        6 

intoxicating  liquors,  remarks  generally 1 

lager  beer  defined 24 

license    184 

"  liquor  "    defined 2 

"  malt    liquor  "    defined 12 

"  near  beer  "   defined    n     20 

"  open  house  " n  109 

owner    n  261 

porter  defined   32 

"  saloon  "   defined 15 

"spirituous  liquors"   defined   and   considered 7,       8 

"  tavern  "    defined n  15,  n  234 

"  tippling  house  "  defined 16 

"  vinous   liquors  "   defined 13 

whisky  as  a  spirituous  liquor 33 

wine   defined   and   considered 35.     36 

DELEGATION  of  power  by  state. 

See  Licenses,   Municipal  Corporations. 

by  municipality  of  power  to  license 223 

of  legislative  power,  local   option  law  not 371 

DELIVERY  OF  LICENSE. 

license  as  evidence  of 670 

DESCRIPTION. 

of   property   to   be   seized   in   connection   with   liquors n  516 

in  complaint  of  place  to  be  searched 527,  528,  529 

of   building,   indictment 655 

DESTRUCTION. 

of  liquors.     See  Search,  Seizure  and  Forfeiture. 

of  liquors,  ordinance  as  to 146 

DIRECT  PROOF. 

See    Evidence 671 


INDEX.  761 

DISCONTINUANCE.  section 

of  proceedings  to  revoke,  when  court   may  order n  320 

of  nuisance  as  defense,  abatement  and  injunction 

DISCRETION. 

municipality  cannot  delegate  power   requiring  exercise  of....  14'J 

of  common  council  courts  cannol    control 149 

of  legislal  are,  condil ions  in  connection  with  licenses 194 

of  city  as  to  prohibition 206 

of  municipal  corporation   as  to  amount  of  fee 215 

of  legislature   as   to   licenses n  195 

granting  of  license  ordinarily  matter  of 268 

in  granting  license,  nature  and  exercise  fcf 269 

exercise  of  as  to  granting  license  must  be  a  sound  one 269 

of  licensing  board,  appeal  from  action  of 274 

of  mayor  in  vetoing  license  not  reviewable n  274 

as  t  o  approval  of  bond 343 

DISCRIMINATION. 

against  liquors  manufactured  in  other  states 179 

ordinance   imposing  different   fees   not 206 

as  to  licenses,  city  must  not  make 211 

DISGRACE. 

damages   for 463 

DISJUNCTIVE. 

averments    in    indictments 646 

use  of  conjunctive  where  statute  is  in 647 

DISPENSARY. 

city  cannot  create  under  power  to  control 147 

DISPENSARY  ACTS. 

held  not  repealed 72 

DISPENSARY  BOARD. 

may  maintain  bottling  plant n     91 

DISPENSARY  COMMISSIONERS. 

not    liquor    dealers 22S 

DISPENSARY  LAWS. 

cciist  rued      90-95 

"  DISTILLED  SPIRITS." 

defined    7 

lemon  ginger  not n     40 

taxation    of    177 

DISTILLER. 

separate   license    for  distilling  and   brewing n   2SS 

riffht  under  license  to n  293 


762  INDEX. 

DISTRICT.                                                                                                          section 
excluding  liquor  traffic  from 100 

DIVORCE. 

effect  of  action  by  wife  for  injury  to  means  of  support 476 

"DOMESTIC  DISTILLED  SPIRITS." 

defined    n  7 

DRAMSHOP. 

defined    15,  169 

DRAMSHOP  KEEPER. 

defined    15 

when  state  must  show  defendant  is 668 

DRINKING  SHOP. 

defined    n  15 

DRIVING. 

injury  received  while,  civil  damages 428,  430 

DRUGGISTS.     See  Pharmacists. 

sales  of  compounds  and  medicines  by 37-42 

when  must  close  on  Sunday 118 

restricting  privilege  of  sale  to 123 

statutes  as  to  sales  by 124-128 

may  be  placed  on  same  footing  with  others n  124 

sale  only  on  prescription 125 

extent    of    right    to    sell 126 

returns  of  sales  by 127 

where  object   of  purchase   must  be  stated n  127 

sufficiency  of  report  by n  127 

repeal  of  act  requiring  record  by n  127 

license    laws    as    affecting 202 

what  necessary  to  render  person  one,  license  laws n  202 

ordinance  as  to  permits  to  be  held  invalid 211 

may  be  required  to  obtain  license 228 

statutes  as  to  bond  not  generally  applicable  to 339 

liable  on  bond  though  act  done  by  clerk 356 

provisions  in  local  option  laws  excepting  sales  by n  368 

instruction  as  to  unlawful  sale  by,  civil  damage  acts n  427 

penalties  for  sales  by 557 

action  for  penalty,  when  not  included  in  words  "  or  any  other 

person  "     565 

injunction  as  to  sales  by 616 

no  defense  to  injunction  that  sales  made  by  clerk 628 

contempt  of  injunction  decree  by 634 

offense    by — burden    of    proof 668 

reports  of  sales  by  as  evidence 669 

record  '  669 


INDEX.  7G3 

DRUGGIST— Continued.  se<  i 

request  to  for  liquor  as  evidence 

evidence  as  to  sales  by,  burden  of  proof 

DUE  PROCESS  OF  LAW.     See  Constitutionality  of  Laws. 

constitutional  provision  as  to  construed: 47 

requiring  lirense  not  denial  of 190 

local   option   laws 369 

civil  damage  act  not  a  taking  of  property  without 420 

statute  making  lessor  liable  not  a  taking  of  property  without.  441 

DUPLICITY. 

in   indictment  or  information 665 

where  none  in  indictment  or  information 666 

DURATION. 

of    license 207 

DWELLINGS. 

statute  requiring  consent  of  owners  of 102 

consents  of  owners  of  within  certain  distance 254 

when   fiat   is 256 

sufficiency  and  necessity  of  consents  of   owners   of 256 

DWELLING  HOUSE. 

"  house  "  not  equivalent  of,  search  and  seizure  law n  517 

warrant  to  search,  power  of  officer 539 

E. 

"EACH  CALENDAR  YEAR." 

in    license    statute    construed 297 


EDITIONS. 


of  paper,  what  are  separate  editions. 


n  'Jo 


EFFORTS. 

t  o  conceal  liquor  as  evidence 672 

ELECTION   DAY. 

defined     1 1 ' 

closing  of  saloons  on 117 

ordinance  requiring  closing  on 165 

charging  sales  on 660 

ELECTIONS:    LOCAL  OPTION. 

as  to  pet  id  mi   for  generally 

"term"  ami  "session"  of  courl   distinguished,  time  of  filing 

petition    for »   381 

sufficiency  of  petition  for 


764  INDEX. 

ELECTIONS:   LOCAL  OPTION— Continued.  SECTION 

as  to  signers  of  petition  for 383 

presumption  as  to  signers  of  petition,  burden  of  proof 384 

duty  of  officials  as  to  determining-  sufficiency  of  signatures  to 

petition    385 

presumption  as  to  commissioners  ordering- n  385 

to  whom   order   for  addressed n  386 

order  for  generally 386 

where  statute  does  not  prescribe  form  of  order  for 386 

order  in  substantial  compliance  with  statute 386 

order  for  need  not  state  exception  as  to  sales 387 

failure  of  order  to  designate  hours  for  voting 388 

errors  or  omissions  in  order  for 388 

designating  locality  in  order  for 389 

record   as  to   order   for 390 

notices  of,  publication  and  posting  of  generally 391 

notices  of,  manner  and  mode  of  publication 392 

failure  to  designate  paper  for  publication  of  notice  of  in.,   n  392 

notices  of,  presumption  as  to,  burden  of  proof 393 

proof  of  publication  of  notice  of  election n  393 

effect  of  irregularities  in  connection  with  preliminaries  to.  ...   394 

when  annual  election  required n  394 

provisions  as  to  time  of  holding 395 

time  of  holding  prescribed  with  reference  to  another  election  396 

holding  of  at  place  other  than  lawfully  fixed n  397 

manner  of  holding,  generally 397 

constitutional  provision  as  to  mode  of 397 

where  some  voters  deprived  of  right  to  vote 397 

when  in  conformity  to  general  election  laws 397 

as  to  the  election  officials 398 

fraud  on  part  of  officials  of  election 398 

closing  of  polls  before  sunset n  399 

as  to  the  hours  polls  are  open 399 

as   to    the    voters 400 

as  to  the  ballots  and  ballot  boxes 401,  402 

returns  of,  certification 403 

order  declaring  result  of,  presumption  as  to  preliminary  steps  404 

sufficiency  of  order  declaring  result  of 405 

errors  in  connection  with  order  declaring  result  of 406 

record    as    to 407 

where  statute  requires  publication  of  result  of 408 

publication   of  result   of   for   four   successive   weeks 409 

statute  silent  as  to  time  and  manner  of  publication  of  result  of  410 

presumption  and  evidence  as  to  publication  of  result  of 411 

contest  not  precluded  by  recount  of  votes n  411 

contest  of  an  action  in  rem n  411 

contest  of,  nature  of  right,  statutes 412 

contest     of,    proceedings 413 

who  may  contest 414 

resubmission    of    question 415,  416 


INDEX.  765 

ELECTIONS:  LOCAL  OPTION— Continued.  section 

conclusiveness  of  declaration  of  result,  collateral  attack 417 

judicial  notice  of  adopt  ion,  necessity  of  proof  of 418 

proof  of  adoption  of  local  option,  sufficiency  of 419 

EMPLOYE. 

rights  of  licensee  :is  affected  by  acts  of,  revocation,  rebate.. 

of  defendant,  evidence  as  to  violation  of  instructions  by 687 

licensee  may  sell  by    :j  '' 

evidence  as  to  sale  by   may  be  sufficient 688 

statute  requiring  filing1  list  of  names  of 116 

duty    of    licensee    as    to 290 

sales  by,  civil  damages 436,  437,  438 

EMPLOYMENT. 

of    women    may   be   prohibited 115 

of  women  prohibited   by   ordinance I63 

ENDORSEMENT. 

of  approval  on  bond u"*~ 

ENTERING. 

of  place  between  certain  hours,  ordinances  to 168 

"  ENTRANCE." 

in    statute    requiring    consent    construed 102 

to  saloons,  regulations  as  to 1°6 

to  saloons,  violations  of  statute  as  to 106 

consents  within  certain  distance  of  nearest   entrance 258 

more   than   law   allows,    in  junction 616 

EQUITY.     See  Injunction  and  abatement. 

statute  authorizing  proceeding  to  abate  liquor  nuisance  in 612 

power  of  court  of  as  to  enjoining  liquor  nuisance 615 

ERROR. 

by  attorney  in  signing  name  to  remonstrance a 

in   order  for  local  option   election 388 

in  connection  with  order  declaring  result  of  local  option  elec- 


tion 


406 


in  spelling,  indictment 639 

ESSENCE  OF  GINGER. 

not   within    statute n   ••' 

ESSENCE  OF  LEMON. 

not    within     statute '■■ 

ESSENCE  OF   PEPPERMINT. 

sold  to  he  drank  as  a  beverage 39 


766 


INDEX. 


ESTOPPEL.  section 

to  deny  recitals  of  bond 345 

to  question  validity  of  bond 367 

EVIDENCE.     See  burden  of  Proof;  Judicial  notice;  Presumptions. 

judicial  notice  as  to  what  liquors  are  intoxicating 4,        5 

to  show  intoxicating  character  of  liquor 5 

judicial  notice  of  meaning  of  malt  liquor 12 

judicial  notice,  alcohol  intoxicating 17 

judicial   notice,   ale   malt   liquor 18 

judicial  notice,  beer  fermented  liquor 19 

judicial  notice  as  beer  being  intoxicating 20 

that  beer  intoxicating,  necessity  of 20,  21,     22 

judicial  notice,  lager  beer  a  fermented  liquor n     24 

judicial  notice,  lager  beer  a  malt  liquor 24 

judicial   notice,   whether  lager   beer   intoxicating 25 

judicial  notice,  brandy  a  spirituous  liquor 26 

judicial  notice,  apple  brandy  intoxicating 26 

judicial  notice,  brandy  intoxicating 26 

judicial  notice,  gin  intoxicating 31 

judicial  notice,  porter  intoxicating 32 

judicial  notice,  whisky  a  spirituous  liquor 33 

judicial    notice,    whisky    intoxicating 34 

judicial  notice,  whether  wine  intoxicating 36 

to  show  proportion  of  alcohol  in  medicinal  compound n     37 

judicial  notice  of  political  subdivisions  of  state  in  construing 

statute 74 

to  justify  conviction   for  adulteration n  131 

burden  of  proof  on  one  attacking  validity  of  ordinance......   142 

as    to    population n  175 

presumption  as  to  regularity  of  proceeding  in  levying  tax...   183 

immaterial  in  action  to  recover  money  paid  for  license n  199 

presumption  as  to  validity  of  ordinance  imposing  license  tax  n  214 

as  to  character  of  applicant 241 

burden  of  proof  as  to  requisite  number  of  signers  of  petition  n  249 

authority  to  sign  remonstrance,  burden  of  proof 262 

on  hearing  of  remonstrance 265 

burden  of  proof,  remonstrances 266 

as  to   grunting  other  license  under  similar  conditions   imma- 
terial       n  268 

presumption  that  refusal  of  license  was  for  legal  reason...   n  268 

transcript  of  on  appeal  from  license  board n  276 

presumption  as  to  license  in  action  to  recover  for  liquor  sold  n  295 

not  supporting  allegation  of  not  signing  consent n  311 

of  plea  of  nolo   contendere n  313 

in    proceedings    to    revoke 325 

non-compliance  with  law,  bond,  burden  of  proof. . .  : n  340 

to  show  actual  approval  of  bond  though  not,  endorsed  on 342 

by  special  excise  agents,  conviction,  bond 350 


INDEX.  767 

EVIDENCE— Conl  in  aed.  section 

;is  to  age,  entry   in   family  Bible n  352 

that  minor  was  allowed  to  enter  or  remain  insufficient 352 

hotel  keeper  must  show  sale  by  him  was  within  exception....   354 

in    art  ion    on    bond 366 

record  as  evidence  of  breach  of  bond 366 

as  to  qualified   voter,  registration  book n  383 

presumption  as  to  petition  for  local  option  election 383 

burden  of  proof,  sifners'  petition  local   option  election 384 

presumption  as  to  signers'  petition,  local   option  election 384 

burden   of  proof,  notices  of  local  option  election 393 

presumption  as  to  notices  of  local  option  election 393 

of  publication  of  notice  of  local  option  election n  393 

presumption  as  to  preliminary  steps  from  order  declaring  re- 
sult of  election 404 

as  to  publication  of  result  of  election 411 

judicial  notice,  adoption  of  local  option,  necessity  of  proof  of  418 

proof  of  adoption  of  local  option,  sufficiency  of 419 

sales   by   agent,    civil    damages 436 

burden  of  proof,  sales  to  prohibited  classes,  civil  damages 447 

presumption  as  to  knowledge  of  intoxication,  civil  damages,   n  454 

civil  damage  actions,  generally 458 

civil  damage  actions,  preponderance  sufficient 459 

presumption  as  to  sale,  civil  damages n  460 

civil  damages,  circumstantial 460 

showing    sale,    civil    damage   actions 461 

civil  damages,  life  tables 462 

civil  damages,  injury  to  feelings,  disgrace 463 

of  threatening  language  or  vulgar  conduct n  465 

of  earning  and  financial  condition,  injury  to  wife's  means  of 

support     478 

as  to  prior  conduct,  action  by  wife,  injury  to  means  of  support  479 

as  to  age  and   number  of  children,   action    by   wife 480 

as  to  damages,  injury  to  wife's  means  of  support 

in  action  by  children  for  injury  to  means  of  support 492 

seizure  of  property  for  use  as 516 

in  cases  of  search  and  seizure ' 

of   sales  as  showing   intent   to   unlawfully   sell,   forfeiture   of 

liquors     

necessity  of  as  to  place  where  liquors  seized 550 

necessary  for  condemnation  of  liquors 

finding  as  presumptive  evidence  of  unlawful  keeping 

;,,  action   ol                 i  recover  penalty   \'"v  violation  of  an   ordi- 
nance      55  I 

in  actions  for  penalties,  admissibility 

in  actions  for  penalties,  burden   of  proof 570 

cf  nuisance,  statutes  as  to 611 

proof  required  for  temporary  injunel  ion 617 

allegations  of  petition   admitted   by   not   filing  answers 627 

in    proceedings   for   injunction    and    abatement 627 


768  INDEX. 

EVIDENCE— Continued.  sectiox 

matters  of  need  not  be  charged  in  indictment 649 

when  burden  of  proof  on  state 668 

violation  by  druggist,  burden  of  proof 668 

violation  by  dramshop  keeper,  burden  of  proof 668 

state  need  not  prove  negative  allegations 668 

tax   receipt    as 669 

copy  of  books  of  internal  revenue  collector 669 

records  of  assessor  of  taxes 669 

of  police  officer  who  has  inspected  druggist's  register  of  sales.  669 

applications  for  liquor  as 669 

record  of  druggist  as 669 

reports  of  sales  by  druggist  as 669 

as  to  license,  public  records 670 

showing  granting  of  license 670 

of  official  keeping  record  of  licenses 670 

of  irregularity  in  connection  with  issuance  of  license 670 

to  contradict  license 670 

license  as 670 

of  probate  judge  as  to  issuance  of  license 670 

consignment  of  liquors  to  defendant  as 671 

testimony  of  railroad  agent  as  to  delivery  of  liquors   to  de- 
fendant      671 

bill  from  wholesaler  to  defendant  as 671 

circumstantial   evidence  generally 671 

presence  of  bar,  glasses  and  bottles  as 671 

manner  in  which  place  fitted  up 671 

of  efforts  to  conceal  liquor 672 

finding  of  liquor  in  possession  of  accused 672 

of  person's  leaving  accused's  place  in  intoxicated  condition 672 

persons  leaving  accused's  place  in  disorderly  manner 672 

number  of  people  frequenting  accused's  place 672 

of   habits   of   buyer 672 

burden  of  proof,  intoxicating  character  of  liquor 673 

to  show  intoxicating  character  of  liquor 674 

of  effect   of  liquor 674 

of  quantity  necessary  to  produce  intoxication n  674 

as  to  per  cent,  of  alcohol  in  liquor 674 

of  effects  of  "  tonics  "  or  "  bitters  " n  674 

opinions  as  to  intoxicating  character  of  liquor 674 

Internal   revenue   stamps   on   beer  kegs   as 675 

as   to    kinds    of   liquor 675 

as   to  place   of   offense 676 

as  to  time  of  offense 677 

as  to  sales  on  Sunday 678 

defense  for  keeping  open  on  Sunday 679 

as  to  keeping  open  on  Sunday 679 

of   conversations   as   showing   knowledge 680 

of  intent   to  sell   on  Sunday 680 

showing  knowledge  of  owner  of  building 680 


INDEX.  7(jg 

EVIDENCE— Continued.  section 

as  to  knowledge  of  defendant 680 

as   to   good    faith   of  defendant 680 

as   to    intent    of   defendant 680 

as  to  notice  sent  of  character  of  liquor 680 

as  to  liquor  nuisance 681 

as  to  keeping  place   for  unlawful  sale 

liquors   Kept    for   unlawful   sale,   liquors  seized   as I 

liquors  kept  for  unlawful  sale,  presence  of  intoxicated  persons 

as    

as  to  liquors  kept  for  unlawful  sale I 

ret  urn  made  to  revenue  collector n  ■ 

license   from  United  States 683 

copy  of  United  States  revenue  collector's  records n  683 

as  to   sales   to   prohibited    classes 684 

presumption  as  to  knowledge  that  person  is  intoxicated 684 

burden  of  proof,  defenses 685 

burden  of  proof  as  to  license  or  authority  to  sell 686 

as  to  violation  of  instructions  by  agent 687 

showing  sale  by  agent  may  be  sufficient G^s 

EXCEPTIONS. 

in   statutes,   rule  as  to  construing 68 

in  statute  as  to  licenses  strictly  construed  against  applicants 

for   n  194 

as  defense  to  action  for  penalty,  sale  by  druggist 557 

in  statute,  rule  as  to  charges 663 

in  statute,  application  of  rule  as  to  charging 664 

burden  of  proof  as  to 668 

burden   of  proof  as  to 685,  686 

EXCESSIVE  DAMAGES.     See  Civil  Damage  Acts;   Damages.     Meas- 
ure of  Damages. 

civil  damage  actions 469 

EXCESSIVE  FEE. 

paid,  right  to  recover 199,  200 

EXCISE  COM  M  I SSIONERS. 

See  Licensing  Boards  and  Officials. 

EXCISE  INSPECTOR. 

access  of  to  premises,  ordinance  as  to 171 

EXCLUSIVE  POWER. 

to  city  to  regidate  and   license 151 

to  towns  to  grant    licenses n  226 

EXCUSE.     See  Defenses. 
EXECUTION  of  bond.     See  P.ond. 


770  INDEX. 

EXECUTOR.  section 

transfer  of  license  to n  300 

EXECUTORY  CONTRACT. 

one  holding-  not   a  freeholder 249 

EXEMPLARY  DAMAGES.     See  Civil  Damage  Act;   Damages;   Meas- 
ure of  Damages. 

sales  by  agent  of  defendant 437 

against  owner  or  lessor 443 

sales  to  minors 452 

jury  not  bound  to  award n  465 

that  sale  or  criminal  offense  immaterial n  465 

threatening  language  or  vulgar  conduct n  465 

selling  without  a  license n  465 

generally     465 

statutes  as  to 466 

ground  for  awarding,  right  to 467 

not  punitory  in  character n  467 

no  breach  of  peace 468 

evidence  in  mitigation  of  action  by  wife n  485 

action   by    wife 490 

actual   must   be   proven n  490 

EXEMPTION. 

from  consents,  effect  of  abandonment 257 

from  consents,   New  York 257 

from  consents,   continuous  occupation,  suspension  by  fire  or 

accident    312 

EXPIRATION. 

of  license  as  affecting  revocation 306 

EX  POST  FACTO  LAW. 

statute    prohibiting    not 46 

ordinance  as  to  keeping  open  saloon  after  hour  not 224 

EX  POST  FACTO  LAW. 

search  and  seizure  law  not 498 

EXPRESS  COMPANY. 

where  liquors  seized  in  hands  of,  costs  against n  510 

EXTRA-TERRITORIAL. 

effect  of  ordinances 144 

F. 

FACTORY. 

excluding  traffic  within  certain  distance  of 103 


INDEX.  771 

FALSE  STATEMENTS.     See  Application;   Petition.  section 

in  petition  for  license n  246 

in    application,    revocation 311 

FATHER.     See  Parent. 

when  not  a  "  person  aggrieved  " 423 

injury  to  means  of  support,  death  of  son 430 

action  by,  sales  to  minors 44'J 

FAUCET. 

seizure  of  beer  faucet,  search  and  seizure 516 

FEE.     See  License  fees — Taxes. 

for  inspection  of  liquors,  statute  as  to 130 

search  and  seizure,  when  justice  entitled  to n  519 

of  officers,  search  and  seizure n  538 

FEELINGS. 

injury  to,   damages   for 463 

FELONY. 

person  convicted  of  and  pardoned  not  a  convict 241 

conviction  for,  revocation 313 

FEMALES.     See  Women. 

prohibiting   sales    to 114 

prohibiting   employment   of 115 

ordinance  prohibiting  sales  to 162 

ordinance  prohibiting  employment  of 163 

ordinance  making  fee  higher  in  places  where  employed 214 

licenses  to 238 

FERMENTED  LIQUORS. 

not   included   in   term   spirituous   liquors 7 

where    declared    intoxicating   by   statute 10 

judicial  notice,  beer  is 19 

lager   beer  is,   judicial   notice n  24 

hard    cider    is 29 

PILING. 

of  remonstrances.     See  Remonstrances. 

list  of  names  of  employees 116 

of  petition,  signers  after n  -  19 

of  petition  for  license,  time  of 243 

of    bond 342 

of  bond,  power  of  board  as  to 343 

of  petition  for  local  option  election 381 

FINE.     See  Penalty,  Penalty  Statutes. 

ordinance  providing  for 148 

bond  conditioned  to  pay 355 


772 


INDEX. 


FIKE.  SECTION 

suspending  occupation  of  premises 312 

FIKM.    See  Partners. 

rights    under    license    to 295 

rights  under  license  to  member  of 295 

sale  by  unlicensed  member  of  not  sale  by  agent n  295 

revocation  of  license  to,  sufficiency  of  service  of  order  to  show 

cause   n  314 

dissolution  of  terminates  liability  of  sureties n  340 

FITNESS. 

of  applicant  for  license  an  essential 240 

rights  of  licensee  as  to 302 

FLAT. 

a  dwelling,  consents 256 

FOOD. 

statute  forbidding  giving  away  of  in  saloon 105 

FOKEIGN  CORPOKATIONS. 

licensing    of    236 

FORFEITURE.     See  Rebate,   Revocation,  Search  and  Seizure  Laws, 
Surrender. 

of  liquors.     See  Search,  seizure  and  forfeiture. 

of  liquors,  ordinance  as  to 146 

of    liquors,    judgment    for 551 

nature    of    proceedings    for 545 

whether  proceedings  for  one  civil  or  criminal 546 

proceedings  for  and  for  punishment  of  offender  are  separate.   547 

no  defense  that  intent  was  that  of  agent  of  owner 548 

liquor  dealt  with  as  the  res 548 

FORM. 

of  license   generally ' 231 

FOURTEENTH  AMENDMENT.     See  Constitutionality  of  laws.     Con- 
stitutional Provisions.     Construction  of  Laws. 

as  affecting  power  of  states 44 

does  not  prevent  state  legislation  as  to  liquor  traffic 45 

screen  act  does  not  violate 109 

ordinance  prohibiting  traffic  in  portions  of  city 157 

statute  discriminating  against  liquors  manufactured  in  other 

states    179 

FRANCHISE. 

subject  to  taxation,  license  is 186 

FRAUD. 

on  part  of  election  officials,  local  option 398 


INDEX.  773 

FREEHOLDER.  sectio.v 

one  holding  a  life  estate  is 249 

who  are,  signers  to  petition 249 

one  holding  executory  contract  not 249 

wife  of  applicant  not  qualified  though  freeholder 249 

when    husband   or   wife   not n  24'J 

must  be  bona  fide 250 

burden  of  proof  to  show  signers  of  remonstrance  are 266 

FRENCH  BRANDY. 

spirituous  and  intoxicating 26 

FRUIT. 

effect  of  putting  of  in  brandy 27 

preserved    in    alcohol n     83 

G. 

GAMBLING. 

evidence  of  as  bearing  on  character  of  applicant 241 

on  premises,  revocation  for 309 

condition  in  bond  as  to 351 

GENERAL. 

in  operation,  statutes  should  be 63 

GENERAL  WELFARE  CLAUSE.     See  Municipal  Corporations. 

exercise   of   power    under n  136 

power  of  city  under 140 

does  not  authorize  city  to  engage  in  liquor  traffic 147 

power   of   city   to   license   under 212 

GENTIAN. 

tincture  of  not  within  statute 37 

GTN. 

an   intoxicating  liquor,    judicial  notice 31 

defined  and  considered 31 

GINGER. 

essence  or  tincture  of  not  within  statute n     37 

CLASSES. 

in  place  as  evidence 671 

concealment  of  as  evidence  of  keeping  for  unlawful  Bale 682 

GOOD  FAITH.     See  Defenses. 

in  making  unlawful  sale  no  defense,  revocation 310 

evidence  as  to,  necessity  of 680 

in  sale  to  minor,  burden  of  proof 685 


774  INDEX. 

GRANTING.  section 

of  license.     See  Licenses. 

GRANTS. 

of  power  to  municipalities.     See  Municipal  Corporations. 

GUARDIAN. 

charging1  want  of  consent  of,  sale  to  minor 652 

burden  of  proof  of  as  to  sale  to  minor 685 

GUEST. 

at  hotel,  service  of  liquor  to  on  Sunday 110 

when    person    is n  316 

GUM  CAMPHOR. 

alcohol  mixed  not  a  spirituous  liquor n     40 


H. 

HABITS. 

of  buyer,  evidence  of 672 

HABITUAL  DRUNKARD. 

sales  to,  civil  damages 453 

defined    n  453 

necessity  of  knowledge  as  to,  civil  damages n  453 

HARD  CIDER. 

defined    and    considered 29 

used  to  distinguish  from  sweet  cider 28 

a   fermented   liquor 29 

as    to    whether    intoxicating 29 

HEALTH. 

of  wife,  injury  to  as  element  of  damages 482 

HOLIDAY.    See  Legal  holiday. 

closing   of   saloons   on 117 

defined    n  117 

"HOMEMADE  BEER." 

name  not  controlling 6 

HOMESTEAD  CIDER. 

an    intoxicating    liquor n       3 

"  HOP  BEER." 

whether  intoxicating,  question  for  jury n     20 

"  HOP  TONIC." 

an    intoxicating    liquor n       3 


INDEX.  775 

HORSE.  section 

recovery  for  loss  of,  civil  damages 428 

used  in  transporting  liquor,  seizure  of 507 

HOTELS. 

licenses  for 

whether  building  in  New  York  City  is n    '    i 

license  for,  statements  in  application  for  transfer  of n 

omission   in   petition   for   license   for 

as  exempted  from  obtaining  consents 

revocation   license   to 316 

what  is  under  New  York  law n  316 

breach  of  bonds  given  by 354 

HOUR. 

of  offense  need  not  be  proved n  677 

for   closing,   designation   of 120 

of  closing  and  opening,  municipal  power  as  to 166,  167,  168 

prescribed  by  license  board  unauthorized 294 

pools  are  open,  local  option 399 

"  HOUSE." 

not  equivalent  of  "  dwelling  house,"  search  and  seizure  law.  n  517 

HOUSEHOLDERS.     See  Freeholders;   Owners;   Petition. 

as  signers  of  petition  for  license 249 

HUSBAND. 

injury  to  or  death  of,  recovery  by  wife.    See  Civil  Damage  Acts, 
action  for  injury  to.     See  Civil  Damage  Acts. 

included  in  phrase  "  or  other  persons  " 423 

when  not  a  freeholder n  249 

action  by,  civil  damages 494 

when  not   "  next   of  kin  " 494.  495 

I. 

IMMORALITY. 

remonst  ranee  on  grounds  of 264 

IMPLICATION. 

repeal   by '-' 

repeal  of  municipal  powers   by  not   favored 150 

of  general  law  by  act  conferring  power  on  city 151 

repeal  by  not  favored,  local   option   law 372 

IMPLIED  POWERS.     See  Municipal  corporations. 

of   municipal   corporations 136 

IMPRISONMENT. 

ordinance   providing   for ! ' 8 


770  INDEX. 

INABILITY.                                                                                                       section 
to  obtain  license,  effect  of 229 

INCIDENTAL  POWERS.    See  Municipal  corporations. 

of  municipal   corporations 135 

INCLOSURES. 

ordinances  as  to 160 

INDIANS. 

congress  may  make  it  an  offense  to  sell  to 43 

INDICTMENT  AND  INFORMATION. 

evidence   supporting  and   in  defense.     See   Defenses;  Evidence. 

defective  in  charging  sale  of  "liquors" 2 

charging  unlawful  sale  of  alcohol 17 

charging  sale  of  intoxicating  liquor,   supported   by  proof   of 

sale   of  gin 31 

charging    sale    "intoxicating    liquor,    to    wit:     one    quart    of 

whisky "    34 

term  "  spirituous  liquors  "  in  construed 7 

use  of  "  intoxicating  "  instead  of  "  spirituous  "in 8 

charging  sale  of  intoxicating  liquor,   sale  of  whisky  by  sup- 
port s    34 

as  made  of  recovering  penalty 562 

not  bar  to  action  for  penalty 571 

under  mulct  law  in  Iowa n  608 

defendant  not  entitled  to  jury  trial n  612 

constitutional  provision  as  to  charging  offense 637 

charging  the  offense,  generally 637 

charging  the  offense,  application  of  general  rule 638 

errors  in  spelling 639 

joinder  of  defendant 640 

name  of  accused 641 

charging  class  to  which  defendant  belongs 642 

name  of  purchaser 643 

allegation  as  to  purpose  for  which  sold 644 

stating  offense   in   caption 645 

must  not  charge  disjunctively    646 

where  statute  is  in  disjunctive,  use  of  conjunctive 647 

surplusage    does   not    vitiate 648 

matters  of  evidence 649 

matters   of   defense 650 

want  of  a  license 651 

sale  to  minor,  want  of  consent  of  parent  or  guardian 652 

averment  as  to  place  generally 653 

when  specific  averment  of  place  required 654 

averment  as  to  place,  description  of  building 055 

charging  time  of  offense,  generally 656 

offense  consisting  of  a  succession  of  acts,  charging  with  a  con- 

tinuando     658- 


INDEX.  777 

INDICTMENT  AND  INFORMATION— Continued.  section 

precise  time  not  essenl ial 

time  of  offense,  sale  on  Sundays 659 

sales  on  election   day 660 

averments  as  to  knowledge 661 

averments  as  to  intent 661 

general  rule  as  to  charging  in  language  of  statute 662 

rule  as  to  exceptions  in  statute 663 

exceptions  in  statute  application  of  rule 604 

duplicity     665 

where   not   duplicity 666 

joinder  of  offenses 667 

INDORSEMENT. 

on  summons,  action  for  penalty n  567 

INFORMATION.     See  Search  and  Seizure  laws;   Indictment  and   In- 
formation, 
contempt  proceedings,  sufficiency  of 633 

INHERENT  RIGHT. 

none  to  sell  liquor 77 

INJUNCTION  AND  ABATEMENT. 

where  traffic  a  nuisance,  generally 608 

INJUNCTION. 

against  enforcement  of  tax  law n  173 

to  restrain  granting  of  license n  268 

right   of  individual  to  abate 609 

abatement  must  be  by  due  process  of  law 609 

statutes  as  to  constitutional 610,  611 

particular    statutes    construed 611 

statute  authorizing  proceeding  in  equity 612 

municipal  powers  generally 613 

nature   of  proceeding 614 

statute  as  to  cumulative  of  other  remedies |'>1."> 

remedy  by  injunction  generally 615 

injunctions,    instances 616 

temporary    injunction 617 

proof  required  for  temporary  injunction 

right  of  individual,  private  nuisance 618 

righl   to  second  injunction 619 

injunction  fraudulently  obtained 619 

who  may  be  enjoined 620 

when  injunction  against  owner  of  building  granted 

"  knowingly  permits  "  in  stal  ute  construed 621 

when  injunction  against  owner  of  building  not  granted 

enjoining  breach  of  covenant  not  to  sell  liquors 623 

who  may  institute  proceedings 624 

pel  it  ion.  form  and  sufficiency  of 625 


778  INDEX. 

INJUNCTION— Continued.  SECTION 

answer  to  petition  for 626 

evidence    627 

defenses    generally 628 

effect  of  discontinuance  of  nuisance 629 

judgment    a    decree 630 

injunction  effectual  after  dissolution  of  firm 630 

modifying    decree 631 

statute  as  to  penalty  for  violating  injunction 632 

contempt,  proceedings  to  punish  for,  nature  of 632 

contempt,  sufficiency  of  information 633 

contempt,   what  constitutes 634 

effect  of  appearance  in  court,  contempt 635 

conviction  as  prerequisite  to  abatement 636 

IN  REM. 

proceedings  for  forfeiture  are 545 

INSOLVENTS. 

order  for  transfer  of  license  by n  300 

INSPECTION. 

of  liquors,  statutes  as  to 130 

INSPECTOR. 

of  liquors,  where  not  appointed n  129 

INSTRUCTIONS. 

as  to  meaning  of  intoxication n  421 

as  to  unlawful  sale  by  druggist n  427 

to  agent,  violation  of,  civil  damages ,.   436,  437 

to  agent,  violation  of,  civil  damages 436,  437,  438 

INTENT. 

of  legislature,  construing  laws 66 

that  of  agent  of  owner,  no  defense  to  forfeiture 548 

to  unlawfully  sell,  evidence  of  sales  as  showing  where  liquors 

seized   550 

averments  as  to,  indictment 661 

when  not  an   element   of   offense,   proceeding   for   injunction, 

defenses 628 

evidence  as  to,  necessity  of 6S0 

of  purchase  in  going  to  saloon  not  material 680 

INTERNAL  REVENUE  COLLECTOR. 

copy  from  books  of  as  evidence 669 

INTERNAL  REVENUE  RECEIPT. 

as  to  furnishing  public  record  of 133 

INTERNAL   REVENUE  STAMPS. 

on  beer  kegs  as  evidence 675 


INDEX.  77!) 

INTERSTATE  COMMERCE.                                                                         sectio.v 
power  «>i  state  as  t<> 4s 

power  of  state,  rules  stated   in   Vanee  v.  Yandercook 4'.» 

power  of  state  as  to  shipments 50 

laws  affecting  sales  iii  original  packages  } >i  i< > i-  to  Wilson  Acl ...  51 
statute  forbidding  keeping  of  liquors  for  purpose  61  sale  in 

another   state 

state  cannot  forbid  shipment   into  state 

Wilson   Act,   effect    and   construction 54,  55,  57 

words  "  upon  arrival  "  in  Wilson  Act  construed 57 

ordinance  as  to  license  must  not  interfere  with -11 

INTERSTATE  SHIPMENTS. 

power  of  state  as  to 50 

when  state  cannot   forbid 53 

Wilson  Act,  effect  and  construction  of 54,  55,   57 

words  "  upon  arrival  "  in  Wilson  Act  construed 57 

INTERVENORS. 

proceedings  to  revoke  license 320 

INTOXICATED  PERSONS. 

sales  to  generally,  civil  damages 447 

sales  to,  civil  damages 4" 4 

charge  as  to  who  is n  4">4 

no  recovery  by  personal  representatives  for  death  of 495 

right  of  action  by 496 

recovery  for  assault  by 497 

evidence  as  to  sales  to 684 

INTOXICATING. 

character  of  liquor,  evidence  to  show 5 

use  of  instead  of  spirituous  in  information 8 

character  of  liquor,  burden  of  proof 673 

character  of  liquor,  evidence  to  show 674 

character  of  liquor,  opinions  as  to ,,~4 

character  of  liquor,  evidence  of  per  cent  of  alcohol  in 674 

INTOXICATING  BEVERAGES.     See  Intoxicating  liquor. 

INTOXICATING  LIQUORS. 

remarks  as  to  generally 1 

"  homestead     cider  "     as n        3 

"  hop    tonic  "    as n        3 

term  defined  and  considered 3 

includes  more   than   spirituous   liquor n       3 

"  pop  "    as n 

name    immaterial 6 

where  certain  liquors  are  enumerated  by  statute  as 9,  10 

whether    alcohol    is 17 

ale    as ".  2ft 


780 


INDEX. 


INTOXICATING  LIQUORS— Continued.  section 

whether  beer  is 20,  21,  22,  23 

lager  beer  as 25 

brandy  is,  judicial  notice 26 

whether  cider  is,  question  for  jur}' 28 

hard  cider  as 29 

statute  declaring  cider  to  be 30 

gin  as,  judicial  notice 31 

porter  as,  judicial  notice 32 

judicial  notice,  whisky  as 34 

whisky    as 34 

wine  as,  statutes 36 

lemon   extract  as n  37 

whether  compounds  are,  question  for  jury 41 

construction  of  statutes  as  to  generally 64 

no  inherent  right  to  sell 77 

nature  of  right  to  sell 78 

constitutional  provisions  affecting  right  to  sell 79 

state  may  prohibit  traffic  in 83 

taxation  based  on  different  kinds  of 177 

evidence  of  notice  to  defendant  as  to 680 

INTOXICATION. 

defined     14 

*  n  421 

meaning    of " 

must  be  proximate  cause,  civil  damages 429 

knowledge  of  presumed,  civil  damages n  454 

of  persons  leaving  premises  as  evidence  of  keeping  for  unlaw- 
ful   sale 682 

presumption  as  to  knowledge  of 684 

EN  TRANSITU. 

seizure  of  property 507 

INVALIDITY. 

of  part  of  statute 67 

ISSUANCE. 

of  license.    See  Licenses. 

J. 

JAMAICA  GINGER. 

an   intoxicant   and   spirituous   liquor 41 

JOINDER.     See  Pleading. 

of  defendants.     See  Indictments, 
of  parties.     See  Parties. 

of  defendants  contributing  to  injury,  civil  damages 439 

of  parties,  civil  damages 456 


INDEX.  781 

JOINDER— Continued.  bbctiob 

of  mother  and  children  as  plaintiffs 

of  defendants  in  indictment 640 

of    offenses 667 

JOINT  LIABILITY. 

of    defendants,    civil    damages 439,   4  in 

in   act  ion   on   bond 363 

JUDGMENT. 

in  replevin  of  liquors  seized,  power  of  officer  to  consent  to.  .    n   "  ! ! 

for  forfeiture  of  liquors 551 

in  injunction  proceedings 630 

in  injunction  proceedings,  modification  of 631 

JUDICIAL  NOTICE.    See  Evidence. 

as  to  whisky,  brandy,  rum  and  gin  being  intoxicating 4 

of  meaning  of  malt  liquor 12 

t  hat  alcohol  is  intoxicating 1" 

ale  a  malt  liquor 18 

beer   fermented   liquor 19 

whether  beer  intoxicating 20,  21,  22,  23 

lager  beer  a  malt  liquor ~4 

lager  beer  a  fermented  liquor n  24 

whether  lager  beer  intoxicating 25 

that  brandy  is  intoxicating 26 

apple    brandy    intoxicating 26 

brandy  a  spirituous  liquor 26 

gin    intoxicating :1 

porter  an  intoxicating  liquor 

whisky  a  spirituous  liquor 33 

whisky     intoxicating 34 

whether    wine    intoxicating ;'' 

of  political  subdivisions  of  state  in  construing 74 

of  adoption   of  local  option -11s 

JUDGMENT. 

liability   in   bond   for 

JULY. 

fourth  of  not  a  legal  holiday n  11T 

JURAT. 

controlled  by  recital  in  warrant,  search  and  seizure n   519 

JURISDICTION. 

appearance  not  waiver  <>f  defects  in  process  as  to,  search  and 

537 

seizure     

value  of  liquors  as  affecting,  search  and  seizure n  546 


7S2  INDEX. 

JUKY.  SECTION 

whether  "  hop  beer  "  intoxicating-  question  for n  20 

whether  eider  intoxicating  question   for 28 

whether  peach  cider  intoxicating  question  for 28 

whether  cider  vinous  or  spirituous  question  for 28 

question  for  whether  blackberry  wine  spirituous 35 

whether  compounds  intoxicating  a  question  for 41 

revocation  proceedings,  no  right  to  trial  by  jury 327 

proximate  cause  question  for,  civil  damage  cases 433 

question  for  whether  sale  caused  or  contributed  to  intoxica- 
tion       435 

whether  defendant  caused  or  contributed  to  intoxication  ques- 
tion   for 435 

question      of    knowledge    of     owner     of    business     for,     civil 

damages   n  441 

whether  wife  contributed  to  injury  of  husband  question  for  n  485 
search  and  seizure  laws  not  invalid  as  denying  right  of  trial 

by   500 

question  for,  where  liquors  delivered  to  carrier n  508 

defendant    not    entitled    to    trial   by,    injunction    and    debate- 

ment    n  612 

question  for  as  to  effect  of  sale  by  defendant's  servants.,   n  681 
question  for  as  to  good  faith  of  instructions  to  agent....   n  687 

JUSTIFICATION.     See  Defenses. 

K. 

KEGS. 

interval  revenue  stamps  on  as  evidence 675 

KEEPING. 

for  unlawful  sale,  allegations,  search  and  seizure 525 

liquors  for  unlawful  sale,  evidence  as  to 6S2 

liquors     for    unlawful    sale,    license    from    United    States    as 

evidence    683 

KEEPING  OPEN. 

on  Sunday,  evidence  in  defense 679 

on  Sunday,  statute  as  to  prima  facie  evidence 679 

on  Sunday,  evidence  as  to 679 

KEEPING  PLACE. 

for  unlawful  selling,  evidence  as  to 681 

"  KNOWINGLY  PRINTS." 

as   used   in   statute   construed 621 

KNOWLEDGE.     See  Evidence,  Defenses. 

of  agent,  owner  bound  by,  civil  damages 442 


[NDEX. 


7-:: 


KNOWLEDGE— Continued.  s,  ,  ,„)N 

of  lessor  as  to  use  of  premises,  when  must  be  shown 443 

as     to    one    being    habitual    drunkard,    necessity    of,    civil 

damageB  „   r,  3 

of  owner  of  building,  injunction 621 

allegation    of    injunction 625 

of  agent  imputed  to  owner  of  premises 

averments  as  to,   indictment 661 

want  of  as  defense  to  keeping  open  on  Sunday,  evidence....   679 

c\  idence  as  to,  necessity  of 680 

of  owner  of  building,  evidence  showing 680 

L. 

LABOE  DAY. 

closing  of  saloons  on 117 

LAGER  BEER. 

not  included  in  term  "  spirituous  liquor  " 24 

a  malt   liquor 24 

a    fermented    liquor,    judicial    notice n     24 

defined   and   considered    24,  25 

where  declared  by  statute  to  be  intoxicating 25 

as  an  intoxical  ing  liquor 25 

tax   on  wholesalers  in n  178 

LANDLORD.     See  Owner. 

Injunctions    against 621,  622 

LEASE. 

of  premises  by  brewing  company  for  purpose  of  sale  of  beer  n  235 
provision    in    against    unlawful    business,    injunction    againsl 

owner    621 

conditions  in  connection  with,  enjoining  breach  of 623 

LEGAL  HOLIDAYS. 

closing  of  saloons  on 117 

Christinas     is n   117 

for  commercial  paper n   117 

holiday    defined n 

Fourth   of   July   not n   117 

LEGAL  VOTERS. 

as  remonstrants n  261 

synonymous  with  "registered  notes,"  local  option  petition.. 

LEGAL  REPRESENTATIVES. 

of  licensee  no  right  to  sell 292 

LEGISLATIVE  POWER. 

local     option     law     not     delegation     of 371 


7S4  INDEX. 

LEGISLATURE.     See  Police  Power,  State,  Statutes.  section' 

intent  of  in  construction  of  laws 66 

limitations  in  power  of,  search  and  seizure 503,  504 

LEMON. 

essence  or  extract  of  not  within  statute 37 

LEMON  EXTRACT. 

as  an  intoxicating  liquor n     37 

LEMON  GINGER. 

not  distilled  spirits n     40 

LESSEE.     See  Injunction  and  abatement. 

LESSOR. 

statute  making  liable  civilly  is  constitutional 441 

liability  of  under  civil  damage  act 441 

exemplary  damages  against 443 

injunction  against,  nuisance 621,  622 

See   Injunction  and   Abatement. 

LEVY  OF  TAX. 

presumption  as  to  regularity  of  proceeding  in 183 

license  as  subject  of 301 

LICENSE.  See  Licensing  Boards  and  Officials;  Rebate;  Remon- 
strance; Revocation  of  license;  Rights  under  license;  Sur- 
render;   Transfer. 

from  United   States  confers  no  right   to   violate   state  laws..  84 
to  keep  liquors  in  one's  possession,  statute  requiring  uncon- 
stitutional      85 

words   "  no   license  "   construed n  110 

grant  to  city  of  power  to 139 

exclusive  power  to  city  to  regulate  and 151 

LICENSE. 

levying  of  tax  not n  174 

defined     Is-* 

purpose      of 185 

not  a  contract 186 

no   Nested    right  created   by 187 

not    property 187 

a   franchise  subject  to  taxation 186 

right    under    New    York    statute 188 

not   a   tax,   uniformity   of   taxation 189 

laws   are    constitutional 190 

laws  an  exercise  of  police  power 190 


INDEX.  785 

LICENSE— Continued.  BECTIOS 

power   of   state   as   to 1'"1 

statutes  should  be  construed  together "  190 

statutes    are    restrictions " 

construction  of  facts  generally I''1 

law   will   not   operate   retrospectively ''' 

subject  to  laws  in   force  and  subsequently  passed ' 

subsequenl  laws  prohibiting  salt's  on  certain  days n 

subsequent  law  declaring  void 0  19 

subsequent     law     increasing     fee n  19 

effect  of  repealing  acts  on '  '■'  ■ 

legislature   may   prescribe  conditions 194 

exceptions    in    statute    strictly    construed    againsl    applicants 

for    "  194 

power  of  legislature  as  to  amount  of  fee 195 

legislature  has  large  discretion n  195 

issued   on   credit 196 

payment  of  fee  in  advance 196,  WJ 

payment  of  fee  and  mode  of 196,  l'-'< 

enforcing  payment  fee 198 

right  to  recover  fee  paid 199,  200 

complaint  to  recover  money  paid  for n  199 

where  cities  transferred  from  one  class  to  another n  199 

evidence    immaterial    in    action    to    recover    money    paid    for 

license     n  199 

residence  as  perequisite  to  right  to 201 

limited  to  white  male  inhabitant 201 

provisions  as  to  whom  may  issue  to :"  ' 

laws  as  affectine-  druggists 202 

laws  as  affecting  physicians 202 

local  boards  may  be  authorized  to  regulate  and  license 203 

state  may  delegate  power  to  license  to  municipalites 204 

power  to  city  to  license  repeals  as  to  city  prohibiting  law  for 

°04 
county     ~"* 

act   amending  void   act    n   204 

charter  amendment  fixing  amount  of  fee n   204 

different  license  fee  in  different  cities n  204 

whether  ordinance  as  to  for  revenue  or  regulation 

power  of  city  to  license,  regulate  and  prohibit  construed.  205, 

municipal  power -' 

ordinance  imposing  different   fees 206 

discretion  of  city  to  prohibit  a  license  or  regulate 

to  hotels,  conforming  issuance  of n  206 

sales  of  social  clubs n   ~""' 

municipal  power  to  prescribe  penalty 

failure  or  refusal  of  city  to  license 203 

power  of  city  to  under  different  clauses 200 

grants  to  municipal  corporations  strictly  construed 200 

power  to  municipal  corporations  must  be  clearly  given 209 

municipal  corporations  must  not  exceed  power  granted 210 


786  INDEX. 

LICENSE — Continued.  section 

number  city  may  grant  limited 210 

municipal  corporations  must  not  discriminate,  interstate  com- 
merce        211 

on  brewery,  distilleries  and  depots,  ordinance 211 

power  under  general  welfare  clause  in  charter 212 

power  of  municipality  must  be  exercised  by  ordinance 213 

right  of  municipal  to  impose  fee  or  tax  generally 214 

discretion  of  municipal  corporation  as  to  amount  of  fee 215 

municipal   corporation   must   not   impose   prohibiting   fee....   216 
amount  of  fee  imposed  by  municipal  corporation  as  affected 

by   state   fee 217 

city  may  require  license  fee  although  state  also  does 218 

to   sell   on   steamer n  218 

municipal  power  to  impose  conditions  and  regulations 219 

municipal  conditions  as  to  revoking 220 

municipal  power  to  prescribe  limits  for  licensing  traffic 221 

municipal  corporation  may  license  in  one  section  and  prohibit 

in    another    221 

ordinance  void  in  part 222 

delegation  of  power  by  municipality 223 

subject    to    valid    ordinance 224 

as  to  repeal  of  municipal  powers 225 

right  to  defendant  on  submission  to  vote 226 

right    to    generally    226 

where  denial  of  a  discrimination 226 

right  to  renewal  of 226 

exclusive  power  to  town  to  grant n  226 

payment  of  less  fee  than  law  requires 227 

payment  of  fee  prerequisite  to 227 

strict  compliance  with  law  essential  to  right  to 227 

tender  of  fee  not  sufficient n  227 

necessity  of  obtaining 228 

inability  to  obtain,  effect  of 229 

refusal  to  issue,  effect  of 230 

when  must  be  in   writing 231 

form    of   generally 231 

city  and  county  license  may  be  required 232 

state  and  city  license  may  be  required 232 

more  than  one  may  be  required 232,  233 

liquor  sold  in  connection  with  other  business 233 

for  hotels  and   taverns 234 

right  to  refuse  license  to  sell  in  restaurants n  234 

to   corporations 235 

to  whom  may  issue 23."i 

to  foreign  corporations 23H 

to   partners 237 

to    women     238 

removal  permits,  application 239 

applicant  must  possess  requirements,  fitness 240 


lNDKX.  787 

LICENSE— Continued.  section 

as  to  character  of  applicant 2 

effect  of  averment  in  protest  as  to  unfitness n  241 

;is  to  petition  or  application 242 

time  of   filing-  petition   for 243 

description  <>f  premises  in  petition  for :- " 

statements  in  petition  for  as  to  applicant 

false  statements  in  petition 246 

omission   in   petition   to  answer 246 

omission  to  s*ate  name  of  owner  of  premises  in  petition  for.  .   247 

amendment  to  petition  for 247 

petition  for  defective 247 

petition  for,  recommendation  for,  signing  of 248 

petitions  for  may  be  combined n  248 

petition  for,  who  are  freeholders 249 

burden  of  proof  as  to  number  of  signers  of  petition  for n  249 

freeholders  must  be  bona  fide  petition 250 

necessity  of  notice  of  application  for 251 

necessity  of  publication  of  notice  of  application 252 

sufficiency  of  publication  of  notice  of  application 253 

as  to  consents  generally 254 

right  to  withdraw  consent n    -'  ' ' 

consent  of  owner  of  fee n  2'^4 

consent  of  majority  of  police  commissioners n  254 


sufficiency   of   consents,   signers. 


255 


sufficieacy  and  necessity  of  consents  of  owners  of  dwellings..   256 

exemption   from  consents,   New  York 257 

exemption  from  consents,  adoption  of  local  option  does  not 

ext  inguish    n   :::,T 

consents  within  certain  distance,  nearest  entrance 258 

laws,  "  schoolhouse  "  as  used  in  construed 259 

laws,  "  church  "  as  used  in  construed 259 

remonstrances     generally 26° 

persons  authorized  to  remonstrance 26i 

,,xn  ncr  of  land  defined n   26] 

signing    of    remonstrances 262 

right  to  withdraw  from  remonstrance 

form  and  sufficiency  of  remonstrance 

remonstrances,  hearing  of,  procedure,  appeal 265 

remonstrances,    burden    of    proof 266 

mode    of    testing    validity    of,    collateral    attack 267 

granting  of  ordinarily   matter  of  discretion 

aa1  are  of  discretion  and  exercise  of  in  granting 269 

officials'  duty  ministerial  as  to  granting  license,  must    issue   it. 

compelling  issuance  of   271 

mandamus   to   compel    issuance,    what    essential    to   show 272 

mandamus  to  compel    issuance  of   receipt 273 

mandamus  to  enforce  action  on  application 273 

board  having  discretionary  power,  right  to  appeal  from  action  of..   274 
where  appeal  from  licensing  board   allowed,  parties -•  5 


788  INDEX. 

LICENSE — Continued.  section 

where  appeal  allowed,  procedure  and  practice 276 

where  appeal  from  action  of  licensing  board  allowed,  procedure  and 

practice     276 

board  must  act  in  conformity  with  powers 277 

power  of  board  as  to  time  of  granting 278 

board  no  power  to  grant  license  to  sell  in  forbidden  locality 279 

board  cannot  delegate  power 280 

action  by  officers  de  facto  as  to 281 

ordinance  granting,  duty  of  official  to  sign 282 

clerks  should  not  depart  from  order  of  court  in  issuing 283 

refusal   of   for   violation    of   law 284 

refusal  for  violation  of  law,  effect  of  conviction  or  decree 285 

qualifications   of   licensing   officials 286 

terms  of  as  limiting  right 288 

when   it  takes   effect 289 

duty  of  licensee  to  obey  laws,  as  to  employees 290 

licensee  may  sell  by  agent 291 

personal  representative  of  licensee  no  right  to  sell 292 

as  to  place  of  sale 203 

where  license  board  prescribes  unauthorized  hours 294 

to    firm,    rights    under 295 

to  member  of  firm,   rights   under 295 

presumption  as  to  in  action  to  recover  for  liquor  sold n  205 

to  officer  of  corporation,  rights  under 296 

duration   of 207 

not  assignable 298 

not  subject  of  chattel  mortgage n  298 

transfer  of  liquor  tax  certificate  in  New  York ■ 299 

transfer  of  in  Pennsylvania 300 

as  subject  of  levy  and  sale 301 

rights  of  licensee  as  to  stock  and  fixtures 302 

revocation  of  generally 303 

power  of  municipality  to  revoke 304 

where  statute  specifies  causes  for  revocation 305 

expiration  of  as  affecting  revocation 306 

revocation  of  by  repeal  of  law 307 

provisions  in  as  to  increase  of  fee 308 

provision   in   as  to   forfeiture 308 

grounds  for  revocation  of  generally 309 

revocation  for  unlawful  sales 310 

revocation  for  false  statements  in  application 311 

statement  as  to  continuous  occupation,  suspension  by  fire  or  acci- 
dent,   revocation 312 

revocation  for  conviction  for  violation  of  law 313 

revocation  of  to  partners 314 

to  club  organized  to  evade  law,  revocation 315 

to  hotels,  revocation  of 316 

petition  for  revocation  of 317 

answer  in  proceedings  to  revoke 318 


INDEX.  789 

LICENSE — Continued.  section 

parties  t<>  proceedings  to  revoke .il!» 

revolution,  wlm  may  intervene 320 

proceedings  for  revocation  of 32] 

revocal  ion,  appoinl  ment  of  referee 323 

exercising  power  to  revoke,  mandamus ■''•-! 

evidence  in  proceedings  to  revoke 32S 

staying  proceedings  to   revoke .''<_'<; 

revocation,  no  right  to  trial  by  jury 327 

costs  of  proceedings  to  revoke 328 

review  of   proceedings  to   revoke '■'■-■> 

revocation,  right  to  rebate,  no  statute 330 

revocation,  righl  to  rebate,  where  statute 331 

surrender,  right  to  rebate,  New  York 332-336 

rights  of  licensee  as  affected  by  acts  of  employe,  revocation,  rebate.  337 

revocation,  effect  of  surrender  before  discovery  of  violation 338 

laws,  effect  of  adoption  of  local  option  on '!7ti 

no  protection,  civil  damage  acts 125 

want  of  need  not  be  proved  in  action  for  penalty 570 

charging  want  of  in  indictment 651 

record  showing  granting  of,  evidence G70 

as    evidence G70 

testimony  of  public  official  as  to t'.7u 

no  evidence  to  contradict 070 

from  United  States  as  evidence GS3 

to  sell,  burden  of  proof  as  to 680 

See  License;  Remonstrance;  Revocation;  Rights  under  license. 

LICENSE  FEE. 

statute  requiring  not  a  taking  of  property  without  due  process  of 

law 47 

power  to  municipality  to  exact  construed 139 

ordinance  as  to  application  of  monies  from 14»l 

disposal  of  dependent  on  statute 181,  182 

not  a  tax Ism 

subsequent  law  increasing n  ]  u2 

power  of  legislature  as  to  amount 1  95 

payment  of  with  certificate  of  police  commissioners 196 

payment  of  with  county  warrants 196 

not  given  in  payment  of 197 

enforcing  payment  of    198 

right   to  recover   where  paid 199, 

where  excessive  fee  demanded  and  paid 199,  200 

different  in  different  cities n  20 l 

charter  amendment   fixing n  204 

ordinance  imposing  different    fees 206 

power  of  city  to  fix  must,  be  exercised  by  ordinance 213 

power  of  city  to  fix  generally 214 

ordinance,  making  it  higher  in  places  where  females  employed....  214 
paid,  license  void,  right  to  recover 214 


790  INDEX. 

LICENSE  FEE— Continued.  section 

imposed  by  city  not  a  tax n  214 

by  city  should  not  be  prohibitory 216 

amount  of  city  fee  as  affected  by  state  fee 217 

city  may  require  one  although  state  also  does 218 

payment  of  prerequisite  to  license 227 

payment  of  less  sum  than  law  requires 227 

tender  of  not  sufficient n  227 

power  of  city  to  exact  additional  fee 232 

LICENSING  BOARDS  AND  OFFICIALS. 

granting  license  ordinarily  matter  of  discretion 268 

refusal  for  reason  not  applicable n  268 

question  public  necessity  a  convenience  as  for n  268,  n  274 

no  prohibition  to  restrain  void  grant n  268 

refusal  for  reason  inconsistent  with  fair  discretion n  268 

no  injunction  to  restrain n  268 

nature  of  discretion  and  exercise  of  in  granting  license 269 

discretion  must  be  a  sound  one 269 

must  not  act  capriciously 269,  271 

when  act  ministerial  must  issue  license 270 

compelling  issuance  of  license 271 

mandamus  to  compel  issuance  of  license,  what  essential  to  show.  .  .   272 

mandamus  to  enforce  action  on  application 273 

mandamus  to  compel  issuance  of  receipt 273 

having  discretionary  power,  right  to  appeal  from  action  of 274 

whether    liable    criminally n  274 

discretion  of  mayor  in  vetoing  license  not  reviewable n  274 

where   appeal   allowed,   parties 275 

no  appeal  from  order  overruling  remonstrance n  275 

bond  on  appeal  from n  276 

no  formal  pleadings  on  appeal  from n  276 

must  act  in  conformity  with  powers 277 

power  of  as  to  time  of  granting 278 

no  power  to  grant  license  to  sell  in  forbidden  locality 279 

cannot    delegate   power 280 

action  by  officers  de  facto 281 

duty  of  official  to  sign  license  granted  by  ordinance 282 

clerks  should  not  depart  from  order  of  court  in  issuing 283 

refusal  by  of  license  for  violation  of  law 284,  285 

refusal  of  license  for  violation  of  law,  effect  of  conviction  or  decree.   285 

qualification    of 286 

liability  of 287 

city  not  liable  for  act  of n  287 

prescribing  hy  act  of  unauthorized  house 294 

righl  to  revoke  transfer  of  license n  299 

appeal  from  order  of  transfer  of  license n  300 

exercise  of  power  to  revoke 324 

revocation  by,  member  disqualified n  324 

revoking   license,   recovering   proceedings 329 

sole  power  to  board  to  grant  licenses n  369 


INDEX.  791 

LICENSES.     See  Bonds;  License.  BEOTIOH 

LICENSE  TAX. 

receipt  for  as  evidence.     See  License;  Taxes 

LIEN. 

where  tax  is  made  lien  by  statute L80 

against  owner,  civil  damages 4  H 

holder  of  is  freeholder 249 

LIFE  TABLES. 

as  evidence,  civil  damage  cases 4ii^ 

LIGHT. 

at  night,  ordinance  as  to 161 

LIMITATIONS. 

on  legislative  power,  search  and  seizure 503,  504 

LIMITS. 

for  licensing  traffic,  power  of  city  as  to 221 

LIQUIDATED  DAMAGES. 

amount  named  in  bond  not 348 

amount  as  penalty  for  sale  to  minor 556 

LIQUOR. 

seizure  of.    See  Search  and  Seizure  Law ;  Intoxicating  Liquor. 

indictment  charging  sale  of  defective 2 

denned  and  considered 2 

LIQUOR  DEALERS. 

taxation  of.     See  Taxes. 

LIQUOR  NUISANCE. 

i\  idence  as  to  place  of 6*6 

LIQUOR  TAX  CERTIFICATE.    See  License. 

in  Xrw  York  a  species  of  property 188 

in  New  York  not  subject  of  levy 301 

failure  to  display,  revocation 

surr  aider  of,  right  to  rebate.  New  York 332   336 

procedure  to  obtain  rebate '    * 

conversion  of,  county  treasurer  not  guilty  of " 

mandamus  to  obtain  rebate ;'-' 

violation  by  assignor  of "   ' 

right  of  assignee  of  to  rebate ■•"'• 

where  surrendered  before  discovery  of  violation 338 

void  from  inception,  surety  not  liable  on  bond ■''■'■ 

surrender  of,  surety  on  bond  not  liable  for  act  after 358 

transfer  of  in  New  York -'•''• 

in  New  York,  law  as  to  filing  chattel  mortgage  does  not  apply  to 

assignment   of n  2" 


792  INDEX. 

LIQUOR  TAX  CERTIFICATE— Continued.  section 

in  New  York  is  personal  property n  299 

revocation  for  false  statements  in  application 311 

revocation  conviction  for  felony 313 

to  club,  revocation  of 315 

to   hotels,   revocation   of 316 

sufficiency  of  service  of  order  to  show  cause,  revocation n  314 

assignee  of  as  party  to  proceedings  to  revoke 319 

revocation  of,   appointment   of   referee 323 

staying  proceedings  to  revoke 326 

costs  of  proceedings  to  revoke 328 

LIQUOR  TRAFFIC. 

remarks  as  to  generally 76 

legitimate  at  common  law 76 

no  inherent  right  to  sell  liquor 77 

nature  of  right  to  sell 78 

power  of  state  to  engage  in 88 

power  of  municipality  to  engage  in 147 

LISTING. 

of  person  for  assessment  of  taxes n  173 

LOCAL  BOARDS.     See  Licensing  Boards  and  Officials;   Municipal   Cor- 
porations. 

may  be  authorized  to  regulate  and  license 203 

LOCAL  OPTION  LAW.    See  Petition  for  local  option  election. 

in  force  in  county,  general  law  prohibiting  sale  in  such  county  un- 
constitutional       100 

districts,  regulation  of  sale  in  for  medical  purposes n  125 

adoption  of  does  not  extinguish  right  to  traffic  without  consents,   n  257 

matter  of  police  regulation 368 

part  invalid  as  a  discrimination 368 

constitutionality  of  generally 368 

word  "  municipality  "  applies  to  hamlets n  368 

provisions  excepting  sales  by  druggists n  368 

provision  in  village  charter  as  to  constitutional n  368 

what  is  a  political  subdivision n  368 

not  a  taking  of  property 369 

not  special  or  class  legislation,  uniform  and  general 370 

not  a  delegation  of  legislative  power 371 

construction  of  generally 372 

repeal  by  implication  not  favored 372 

not  repealed  by  act  charging  name  of  township  after  adoption  of.   n  372 

constitutional  provisions  as  to 373 

as  repealing  prior  laws 374 

merely  suspends  prior  laws 375 

effect  of  adoption  on  license  laws 376 

resident  of  local  option  territory  may  purchase  in  wet  territory  for 

own    use 377 


INDEX.  793 

LOCAL  OPTION"  LAW— Continued.  section 

binding  effect  of  note  on  entire  subdivision ::7^ 

effect  of  note,  where  boundaries  charged 379 

statement  of  consent,  Iowa 

as  to  the  petition  generally 381 

sufficiency  of   petition 382 

as  to  signers  of  petition 

petition,  presumption  as  to  signers,  burden  of  proof 384 

petition,  duty  of  officials  as  to  determining  sufficiency  of  signature 

election,  order  for  generally .:   ., 

time  of  holding  election  prescribed  with  reference  to  another  election 

order  for  election  need  not  state  exceptions  as  to  sales 387 

errors  or  omissions  in  order  for  election 

designating  locality  in  order  for  election 389 

record  as  to  order  for  election 390 

notices  of  election,  publication  and  posting  of  generally 391 

notices  of  election,  manner  and  mode  of  publication 392 

notices  of  election,  presumption  as  to,  burden  of  proof 393 

effect  of  irregularities  in  connection  with  preliminaries  to  election.    394 

provisions  as  to  time  of  holding  election 395 

manner  of  holding  election,  generally 397 

as  to  the  election  officin  1 \ 398 

as  to  the  hours  pools  are  open 399 

as  to  the  voters 400 

as  to  the  ballots  and  ballot  boxes 401,  402 

returns  of  election,  certification 403 

order  declaring  result  of  election,  presumption   as  to  preliminary 

steps  404 

sufficiency  of  order  declaring  result  of  election 405 

errors  in  connection  with  order  declaring  result  of  election 406 

record  as  to  election 407 

where  statute  requires  publication  of  result  of  election 408 

publication  of  result  of  election  for  four  successive  weeks 4o'.i 

statute   silent  as  to  time  and   manner  of  publication  of  result  of 

election    4 1 1 1 

presumption  and  evidence  as  to  publication  of  result  of  election.  .  .    41] 

contest  of  election,  nature  of  right,  statute 412 

contest  of  election,   proceedings 41:5 

who  may  contest  election 44,  4;  } 

resubmission  of  question 41.->,  4 is 

conclusiveness  of  declaration  of  result,  collateral  attack 417 

judicial  notice  of  adoption,  necessity  of  proof  of 

proof  of  adoption  of,  sufficiency  of 419 

LOCATION. 

of  premises  in  petition   for  license 244 

LOCALITY 

excluding  liquor  traffic  from  specified  locality 100 

ordinance  prohibiting  traffic   in    portions  of  city 156,  1">7 


7<J4  INDEX. 

LOCAL  LAWS.  section 

generally   62 

act  regulating  sale  in  particular  locality 62 

M. 

MALT  LIQUORS. 

not  included  in  term  spirituous  liquors 7 

■where  declared  by  statute  to  be  intoxicating 10 

judicial  notice  as  to 12 

defined     12 

judicial  notice  ale  is 18 

beer    as 19 

lager  beer  is 24 

cider    not 28 

statutes  providing  for  inspection  of 130 

designation  of  cereals  to  be  used  in  manufacture  of 132 

MANUFACTURE. 

of  liquor  may  be  prohibited 83 

MANUFACTURER. 

may  be  required  to  keep  statement  of  sales 122 

taxation    of 178 

not  a  wholesaler n  178 

ordinance  as  to  tax  on 211 

license  to  not  assignable n  298 

MANDAMUS. 

to  compel  payment  of  taxes  and  fees  to  proper  officials 181 

to  revoke  license  not  paid  for n  227 

hearing  as  to  qualification  of  remonstrants 261 

action  by  board  as  to  remonstrance 265 

to  compel  issuance  of  license  and  attacking  validity  of  law 271 

to  compel  issuance  of  license 271 

to  compel  issuance  of  license,  what  essential  to  show 272 

to  compel  board  to  revoke 324 

not  to  compel  revocation  void  certificate n  324 

to  obtain  rebate,  New  York 335 

to  review  decision  of  city  council  in  revoking  license 304 

to  enforce  revocation  where  license  has  expired 306 

to  compel  action  as  to  bond 343 

to  compel  canvass  votes,  local  option  election 403 

MAYOR. 

discretion  of  in  vetoing  license  not  reviewable n  274 

duty  of  to  sign  license 282 

MEAD. 

judicial  notice  as  to  character  of n       4 


INDEX.  795 

MEANS  OF  SUPPORT.  SEOnos 

of  father,  injury  to  by  death  of  son 430 

where  legal  obligation 172 

injury  to,  ad  ion  by  wife 173 

construction  of  term  generally 473 

right  of  action  for  injury  to  generally,  defenses 474 

income  of  wife  or  ability  to  labor  immaterial 47.". 

action  by  wife,  effect  of  divorce 476 

action  by  wife,  pleading 471 

action  by  wife,  evidence  of  earnings  and  financial  condition 47-^ 

action  by  wife,  evidence  as  to  prior  conduct 479 

action  by  wife,  measure  of  damages,  evidence 481 

of  mother,  injury  to  by  sale  to  son 491 

of  children,  action  by  for  injury  to 493 

MEASURE     OF    DAMAGES.       See     Civil     Damage     Acts;     Exemplary 
Damages. 

injury  to  feelings,  mental  anguish  and  disgrace 463 

medical    attendance    as    elementary 464 

exemplary   damages  generally 465 

statute  as  to  exemplary  damages 406 

excessive    damages 469 

action  by  wife,  injury  to  means  of  support,  evidence 481 

action  by  wife,  exemplary  damages 490 

mental  anguish  of  husband,  death  of  wife 4!»4 

MEDICAL  ATTENDANCE. 

as  element  of  damages 464 

MEDICAL  PURPOSES. 

sales  by  druggists  for 124-128 

regulation  of  sale  for "  125 

MEDICINES. 

where  formula  for  prescribed  by  standard  dispensatory -'?7 

and  compounds  considered 3/ -42 

test  whether  intoxicating 38 

-did  in  good  faith 40 

license  may  be  required  for  compounding  of 

MENTAL  ANGUISH. 

damages  for "* 

of  husband,  death  of  wife 494 

MENTAL  SUFFERING.     See  Mental  Anguish. 

MERCHANT. 

-riling  liquors  in  addition  to  oilier  business 233 

METHEGLIN. 

judicial  notice  as  to  character  of n       4 


796 


INDEX. 


MINISTERIAL.                                                                                                 section 
duty  as  to  licenses,  must  issue 270 

MINOR. 

sale  by  town  agent  to n  98 

statute  prohibiting  sales  to 113 

what  constitutes  sale  to n  113 

ordinance  prohibiting  sales  to 161 

forfeiture  of  license  for  sale  to n  304 

sales  to  as  breach  of  bond 352 

statute  fixing  minimum  sum  for  sale  to 420 

sales  to  generally,  civil  damages 447 

sales  to,  action  by  parents  generally 448 

sales  to,  action  by  father 449 

sales  to,  action  by  mother 450 

sales  to,  consent  of  parent  as  bar 451 

sales  to,  exemplary  damages 452 

action  by  mother  in  behalf  of 492 

pleading  in  action  by,  civil  damages n  493 

penalties  for  sales  to "• 556 

surety  on  bond  not  liable  for  penalty  for  sale  to 5G6 

sale  to,  charging  of,  want  of  consent  of  parent  or  guardian 652 

evidence  as  to  sales  to 684 

burden  of  proof  as  to  consent  of  parent 685 

MISDESCRIPTION. 

of  premises  in  petition  for  license 244 

MISRECITALS. 

in   bond 345 

MISSION. 

when  not  a  church,  license  laws 259 

MISTAKES. 

of  licensing  officials,  no  liability  for 287 

in  recital  in  bond 345 

MITIGATION. 

of  damages,  action  by  wife n  481,  n  485 

MODIFICATION. 

of  decree  for  injunction •  ■  •    631 

MONEY. 

received  by  town  liquor  agent,  presumption  as  to n     97 

from  licenses  and  taxes,  disposal  of  dependent  on  statute 181,  182 

paid  for  license,  recovery  of n  199 

MONOPOLY. 

question  as  to  dispensary  law  creating 93 


INDEX.  7!>7 

MORAL  CHARACTER.                                                                                    seci  ro» 
of  applicant  for  license  as  a  requisite 241 

MORTGAGE. 

whether  tax  lien  junior  to 180 

MORTGAGEE. 

no    injunction    against 620 

MOTHER.     See  Parent. 

action  by,  sales  to  minors 450 

action  by,  civil  damages,  sufficiency  of  declaration n  4",7 

injury  to  means  of  support,  of  sale  to  son 4!>1 

is  a  "  person  aggrieved  ",  sale  to  son 4'.i  1 

action  by  in  behalf  of  her  and  children 492 

and  children  may  join  in  action 4M2 

MUNICIPALITY.     See  Municipal  Corporations;  Ordinances. 

MUNICIPAL  CORPORATIONS. 

excluding  liquor  traffic  within  certain  distance  of 100 

state  may  designate  saloon  limits  in 101 

may  prohibit  employment  of  women 115 

legislature  may  delegate  powers  to 1.34 

grants  to  strictly  construed 135 

incidental  or  implied  powers 136 

power  to  suppress,  regulate  or  restrain 137 

grant  of  power  to  as  affected  by  constitutional  provision 138 

power   to   prohibit 138 

when   cannot   prohibit 138 

grant  of  power  to  regulate,  restrain  or  license 139 

no  power  to  prohibit  under  grant  of  power  to  regulate  or  restrain.  139 

power  given  to  regulate  wholesale  and  retail  traffic n  139 

ordinance  under  general  welfare  clause  as  to  keeping  for  unlawful 

sale     140 

ordinances  should  be  general  and  uniform 141 

ordinances  should  be  reasonable 142 

ordinances  having  extra  territorial  effect 144 

ordinances  should  conform  to  law  of  state 14"i 

ordinances  imposing  tax  under  general  welfare  clause 14n 

ordinance  as  to  application  of  license  monies 14:i 

ordinance  as  to  closing  of  saloon  by  force 146 

power  to  engage  in  liquor  traffic 147 

ordinance  providing  for  fine  or  punishment 148 

cannot,    delegate    discretionary    power 14!> 

power  of  municipal   officers 149 

general  law  as  repealing  powers  of 150 

exclusive  power  t<>  city  to  regulate  and  license 151 

act  conferring  power  on  city  as  repealing  general  law 151 

construing  statutes   and   ordinances    together 152 

statute  and  ordinance  making  same  act   an  offense 153 


798  INDEX. 

MUNICIPAL  CORPORATIONS— Continued.  section 

construing   ordinances    together 154 

ordinance  invalid  or  invalid  in  part 155 

prohibiting  in  portions  of  city 156,  157 

prohibiting  wholesalers  in  certain  section n  156 

prohibiting   saloons   near   parks n  156 

as  to  ordinances  where  territory  annexed  to  city 158 

ordinances  as  to  screens,  etc 159 

ordinances  as  to  stalls,  booths  or  inclosures 160 

ordinance  prohibiting  sales  to  minors 161 

prohibitions  as  to  women 162 

prohibiting  employment  of  women 163 

requiring  Sunday  closing 164 

requiring  closing  on  other  than  Sundays 165 

power  to  designate  hours  of  closing  and  opening 166,  167,  168 

light  at  night  in  saloon 167 

prohibiting  entering  of  place  during  certain  hours 168 

ordinances  as  to  quantity 169 

ordinance  as  to  who  may  conduct  business 170 

ordinance  as  to  excess  of  officials  to  premises 171 

ordinance   affixing  penalty 172 

no  inherent  right  as  to  taxation n  173 

may  accept  note  for  license  fee 197 

delegation  to  of  power  to  license .  . .  .  : 204 

charter  amendment  fixing  license  fee n  204 

charter  amendment  conferring  power  to  license n  204 

nature  of  power  to  license 205 

whether  ordinance  for  revenue  or  regulation 205 

exercise  of  power  to  license 205,  206 

power  to  license,  regulate  and  prohibit  construed 205,  206 

ordinance  imposing  different  fees 206 

discretion  to  prohibit  or  license  and  regulate 206 

license  to  social  clubs n  206 

power  to  prescribe  penalty 207 

failure  or  refusal  of  to  license 208 

power  to  license  under  different  clauses 209 

power  to  license  must  be  clearly  given 209 

grants  to  license  strictly  construed 209 

must  not  in  licensing  exceed  power  granted 210 

no   power   to   take  bond 210 

number  of  licenses  city  may  grant  limited 210 

when  may  impose  occupation  tax 210 

must  not  discriminate,  licenses,  interstate  commerce 211 

ordinances  as  to  license  must  not  interfere  with  interstate  commerce.  211 

cannot  prohibit  reception  of  liquors  within  limits n  211 

power  to  license  under  general  welfare  clause 212 

power  to  license  cannot  be  exercised  by  ordinance 213 

power  to  impose  fee  or  tax  generally 214 

power  to  increase  fee 214 

discretion  as  to  amount  of  fee 215 


ixdkx.  799 

MUNICIPAL  CORPORATIONS— Continued.  i  ion 

should  not  impose  prohibitory  license  fee :i|i; 

amount  of  license  fee  as  affected  by  Btate  fee -17 

may  require  license  fee  although  state  also  does 218 

power  to  license  does  not  exempt  licensee  from  payment  of  state  fee.    J  I  - 

power  to  make  regulations  as  to  licenses 219 

power  to  impose  conditions  as  to  licenses li  1  * » 

power  to  impose  conditions  as  to  revoking  license 220 

power  to  prescribe  limits  for  licensing  traffic 221 

may  license  in  one  section  and  prohibit  in  another 221 

ordinance  as  to  license  void  in  part 222 

delegation  by  of  power  to  license 223 

as  to  repeal  of  powers  to  license 225 

where  charier  of  town  authorizes  it  to  collect  tax n  226 

exclusive  power  to  grant  license n  22G 

delegation  to  of  power  to  license  does  not  deprive  state  of  power.  .  .  .    232 

power  to  exact  additional  fee 232 

power  to  require  license  of  merchant -'■'>■'• 

owner  fee  to  park  is  owner n  201 

not  liable  for  acts  of  licensing  officials n  287 

power  to  revoke  license 304 

not  liable  in  tort  for  mistaken  action  in  revoking 304 

right  to  revoke  license  under  power  to  regulate n  304 

limitation  on  power  to  revoke 305 

provision  for  revocation  for  conviction 313 

ordinance  as  to  how  license  may  be  revoked 321 

seizure  of  liquor  in  hands  of  officers  of 505 

ordinances  as  to  penalties  generally 554 

ordinance  as  to  penalty,  contesting  validity  of 555 

power  as  to  liquor  nuisances,  ordinances 613 

MUNICIPAL  OFFICERS. 

as  to  powers  of 149 

MUNICIPAL  POWERS.     See  Municipal  Corporations. 

MUNICIPAL  REGULATIONS.     See  Municipal  Corporations. 

MURDER. 

causing  loss  of  support,  civil  damages 4:27 

N. 

NAMES. 

of  liquor  immaterial 0 

of  employees,  filing  list  of 116 

of  liquor  sellers,  ordinance  as  to  reporting n  219 

of  freeholders  as  sureties  for  petitioner - 1- 

of  owner  of  premises,  omission  to  state  in  petition  for  license 247 

of  signers  of  local  option  petition  withdrawal  of n  383 

in  complaint  of  persons  sold  to,  action  for  penalty n  567 


sou 


INDEX. 


NAMES— Continued.  section 

of  accused,  indictment 641 

of  purchase  of  liquors,  charging  of  in  indictment 643 

"NEAR  BEER." 

defined   n     20 

city  may  prohibit  sale  of  in  certain  sections n  156 

ordinance  prohibiting  screens  in  places  where  sold n  159 

ordinance  as  to  closing  on  Sunday  places  where  sold n  164 

ordinance  as  to  quantity n  169 

ordinance  as  to  who  may  sell 170 

NEAREST  ENTRANCE. 

consents  within  certain  distance  of 258 

NEGATIVE  ALLEGATIONS. 

state  need  not  prove 668 

NEGLIGENCE. 

in  civil  damage  cases 428 

NEWSPAPERS. 

statutes  as  to  advertising  in 60 

publication  in  of  notice  of  application 252-253 

"  NEXT  OF  KIN." 

husband  not   included   in 494-495 

NICKEL  SLOT  MACHINE. 

breach  of  condition  of  bond  as  to  gambling 351 

NOLO  CONTENDERE. 

evidence  of  plea  of n  313 

NOTE. 

given  in  payment  of  a  license  fee 197 

for  transfer  of  license  void 298 

adopting  local  option,  binds  entire  subdivision 378 

NOTICE. 

as   to   liquors   seized 536 

to  defendant  not  necessary,  temporary  injunction 617 

not  to  sell,  civil  damages.     See  Civil  Damage  Acts. 

certificate  of  town  liquor  agent n     98 

of  application,  necessity  of 251 

of  application  for  license,  necessity  of  publication  of 252 

of  application  for  license,  sufficiency  of 253 

of  proceedings  to  evoke,  necessity  of 322 

of  election  for  local  option,  publication  and  posting  of .  .  .  .   391,  392,  393 

not   to   sell,    civil    damages 444-445 

not  to  sell,  civil  damages,  where  right  of  action  accrued n  445 

not  to  sell,  sufficiency,  allegation  of  service,  civil  damages n  445 

not  to  sell,  civil  damages,  pleading n  445 


INDEX.  801 

NUISANCE.     See  Injunction  and  Abatement.  section 

liquor  business  not  per  se 608 

statute-  ae  to  place  being '. 611 

municipal   powers  as   (<i  generally 613 

statute  authorizing  proceeding  in  equity  to  abate <;12 

private,  right  of  individual tils 

who   may   institute  proceedings  to  abate f,24 

discontinuance  of  as  defense,  injunction  and  abatement 629 

evidence    as    to G81 

NUMBER. 

of  entrances  to  9aloons,  statutes  as  to 106 

of  saloons   may  be   limited    by    ordinance 219 

NUNC  PRO  TUNC. 

consents  cannot  be  filed 254 

o. 

OBSTRUCTIONS. 

of  view  of  interior  of  saloon  may  be  prohibited 109,  110.  Ill 

ordinances  as  to  removal  of 159,  1G0,  166 

OCCUPATION  TAX. 

city    may    impose 210 

OFFENSE.     See  Indictment  and  Information. 
See  the  particular  offense  Statutes. 

sale  by  town  agent  to  minor n  98 

as  to  use  of  premises 105 

entrances  to  saloons 106 

where  business  combined  to  single  room I<i7 

obstructing  view  of  interior  of  saloon 109,  110.  1 1 1 

sales  to  minors,  good  faith  not  defense 113 

sales    to    women 114 

employment    of    women 115 

keeping  open  on  prohibited  days 117.  lis.  119 

keeping  open  not  a  continuous  offense n  lis 

sales   in   hotels  on   Sunday 119 

violation  of  law  as  to  hours  of  closing 120 

by   sales   in    prohibited   quantity 120 

sales  by  druggists 125-127 

sales  of  adulterated  liquor 131 

statute  and  ordinance  making  same  act  an  offense 153 

violation  ordinance  as  to  minors , 161 

violation   ordinance  as  to  women 1<>2 

violation  ordinance  as  to  employment  of  women 163 

violation  ordinance  as  to  Sunday  closing 1  * "> 4 

violation  of  ordinance   is  to  sale  without  license 207 

charging  of  generally 637 


802 


index. 


OFFENSE — Continued.  SECTION 

charging  of,   application  of  general   sales 638 

charging   time  of,   indictment 656 

charging  of,  precise  time  not  essential 657 

charging  time  of,  continuando 658 

sales  on  Sunday,  charging  of 659 

joinder    of 667 

burden  of  proof  on   state  to   show 668 

evidence  as  to  time  of 677 

sales  on  Sunday,  evidence 678 

keeping  open  on  Sunday,  evidence 679 

keeping  place  for  unlawful  selling,  evidence  as  to 680 

evidence  as  to  intent,  knowledge  or  good  faith  of  defendant 680 

keeping  place  for  unlawful  sale,  evidence  as  to 682 

OFFICERS.     Search  and  seizure  by.     See  Search  and  Seizure  Laws. 

of  corporation,  license  to,  rights  under 296 

OFFICIALS.     See  Licensing  Bonds  and  Officials. 

ordinance  as  to  access  of  to  premises 171 

OMISSIONS. 

to  answer  in  petition  for  license  or  certificate 246 

in  order  for  local  option  election 388 

OPAQUE  GLASS. 

not  violation  of  screen  law Ill 

"  OPEN  HOUSE." 

meaning  as  used  in  bond n  109 

OPENING. 

municipal  power  to  designate  hours  of 166,  167,  168 

OPINIONS. 

of  witnesses  as  to  whether  liquor  intoxicating 674 

OR  ANY  OTHER  PERSON. 

penalty  statute,  druggist  not  included 565 

ORDER.     For  Election,  Local  Option  Laws. 

for  liquor,  statute  as  to  soliciting 59 

to  show  cause,  sufficiency  of  service  of,  revocation n  314 

to  show  cause,  extension  of  return  day,  revocation n  320 

ORDINANCES.     See  Municipal  Corporations. 

prohibiting  employment   of   women 115 

permitting  saloons  to  remain  open  on  July  4th  invalid 117 

not  prescribing  penalty  void 137 

as  to  club  held  invalid 138 

forbidding  sale  in  certain  class  of  stores  construed 139 


INDEX.  mi:; 

ORDINANCES— Continued.  section 

as  to  keeping  for  unlawful  sale  construed 1  W 

should  be  general  and  uniform 141 

as  to  chairs  and  seats n   141 

presumpl  ion  aa  to  validity 142 

should  be  reasonable 14- 

title  of,  surplusage  in 143 

having  extra  territorial  efTect 144 

incorporating  provisions  of  statute n   144 

should  conform  to  law  of  state 145 

under  general  welfare  clause  imposing  tax 14»i 

as  to  application  of  license  monies 146 

closing  of  saloon  by  force 146 

as  to  forfeiture  and  destruction  of  liquors  invalid 14f> 

providing  for  fine  or  punishment 148 

general    law    as    repealing 150 

construing  statutes  and  ordinances  together 152 

statute  making  same   act  an   offense 1">;; 

construing  ordinances  together 154 

repealing  former  ordinance 154 

of  repeal  void  in  part 154 

invalid  or  invalid  in  part 154 

invalid  not  a  repeal  of  former  ordinance 155 

prohibiting  traffic  in  portions  of  city 156,  157 

prohibiting  wholesales  in  certain  sections n  156 

not  declaring  boundaries  of  residence  and  business  portions....   n   156 
prohibiting  traffic  within  certain  distance  of  school  or  church....    157 

diminishing  value  of  business 157 

where    territory    annexed    to    city 158 

as    to    screens,    etc 150 

prohibiting  screens  in  places  where  near  beer  sold n  159 

as  to  stalls,  booths  or  inclosures 160 

prohibiting   sales    to    minors 161 

prohibiting   sales   to   women 162 

prohibiting  employment    of  women 163 

requiring    Sunday    closing 164 

closing  on  Sunday  places  where  near  beer  sold n  164 

requiring   closing   other    than    Sundays 165 

as   to    hours   of   operating   and    closing   saloons 166,    167,    168 

as    to    light    at    night 167 

forbidding  entering  of  place  during  certain   hours 168 

as    to    quantity 169 

as  to   quantity   near   beer n  169 

as    to    wli<>    may    conduct     business 170 

as  to  access  of  officials  to  premises 171 

affixing  penalty !  '- 

of    county    imposing    higher    license 203 

whether    for    revenue    a    regulation 205 

different    license    fee   not    discriminatory "'"' 

as  to  license  fee  invalid n  206 


804 


INDEX. 


ORDINANCES— Continued.  section 

imposing    tax    construed n  206 

prescribing  penalty,  licenses 207 

as  to  license  must  not  interfere  with  interstate  commerce.  .  . .   211 

prescribing   qualification    of    licenses    invalid 211 

power  of  city  to  license  must  be  exercised  by 213 

imposing  license  tax,  presumption  as  to  validity  of n  214 

imposing   conditions   and    regulations,    licenses 219 

as  to  reporting  name  of  liquor  sellers n  219 

as   to   license   void    in   part 222 

license    subject    to    valid    ordinances 224 

of   county   as   to   remonstrance n  260 

granting  license,  duty   of  official  to   sign 282 

as  to  how  license  may  be  revoked,  should  be  followed 321 

as   to   search   and   seizure   invalid n  498 

as   to   penalties   generally 554 

as  to  penalties,  contesting  validity  of 555 

as    to    liquor    nuisance,    statement 613 

ORIGINAL  PACKAGES. 

legislation  affecting  sales  in  prior  to  Wilson  Act 51 

"  OR  OTHER  PERSONS." 

construed     423 

includes    husband,    civil    damage    acts 494 

ORPHANS'  HOME. 

excluding  traffic  within  certain  distance  of 103 

OWNERS. 

of  dwelling  house,  state  may  require  consent  of 102 

of  property  paid  for  his  consent n  250 

consents  of  within  a  certain  distance 254 

of   fee,   consent   of,   who   is n  254 

consent   of   required,   signing  by  lessee   not   sufficient 255 

agent   of   may   sign    consent 255 

duration    of   consent   signed   by 255 

duly  authorized  may  sign  consents  for  other  owners 255 

of  dwellings,  sufficiency  and  necessity  of  consent  of 255 


OWNER. 


of  property  as  remonstrant 261,  262 

city  holding  fee  to  park  is  owner n  261 

defined n  261 

liability  of  under  civil  damage  acts 441,  442 

of     premises,     qiiestion     of     knowledge     of     for     jury,     civil 

damages     n  441 

of   premises,    act  ion    against,   civil   damages n  441 

exemplary    damages    against 443 

lien    against,    civil    damages 444 


i.ndkx.  S(ir, 

OWNER — Continued.  section 

of  liquors,  allegations  in  complaint  as  to,  Bearch  and  seizure.  526 

of  building,  when  Injunction  against  granted 621 

of   building,    words    "knowingly    permits"    in    statute    con- 
strued      621 

of  building,  when  injunction  against  not  granted <<~- 

knowledge  of  agent  of  imputed   to 628 

of  building,  evidence  showing  knowledge  of 680 

P. 

PAINTED  CLASS. 

violates   screen  law Ill 

PAREGORIC. 

not  within  statute 37 

PARENT. 

is  a   "  person   aggrieved  " 423 

actions  by  generally,  sales  to  minors 448 

sales  to  minors,  action  by  father 449 

sales  to  minor,  action  by  mother 450 

consent  of  as  bar,  sales  to  minor 4"ii 

sales   to   minors,   exemplary   damages 452 

obligated  to  care  for  son  as  result  of  injury 472 

charging  want  of  consent  of,  sale  to  minor 652 

burden  of  proof  as  to  consent  of  to  sale  to  minor 6*5 

PARK. 

prohibiting   saloons   near n  156 

city  holding  fee  to  is  owner n  261 

PARTICULAR  DESCRIPTION. 

in   application   defined n  2  1 1 

PARTIES. 

appeal    from    action    of    licensing    board 275 

to  proceedings   to  revoke 319 

proceeding  to  revoke,  made  of  obtaining  jurisdiction  of....    n  320 

to  actions  on  bonds 364 

PARTITIONS. 

statute    forbidding    use    of 109,    110.    Ill 

ordinances    as    to 15'.),   160 

PARTNER.     See  Firm. 

license   to 2:17 

petition    for    license    should    give    names 245 

rights  uniler  license  to  a   partner 295 

rights   under   license   to    firm 295 


806 


INDEX. 


PARTNER— Continued.  SECTION 

sale  by  unlicensed  partner  not  sale  by  agent n  295 

note    given    for   partner's   interest,    whether    sale    without   a 

license n  297 

violation   of  law  by  one  partner,  revocation 314 

revocation  license  to,  violation  of  law 314 

sale  to  partner  of  another  interest  not  violation,  local  option 

law n  376 

injunction  against  effectual  after  dissolution 630 

PARTNERSHIP. 

license  to 237 

PATENT  MEDICINES.  See  Compounds,  Medicines. 

whether  intoxicating 37,  42 

when  intoxicating   n     38 

PAYMENT.     See  License  fee;   Taxes. 

of  license  fee  prerequisite  to  license 227 

PEACH  BRANDY. 

charge  that  will  produce  intoxication  proper 26 

an    alcoholic    liquor n  26 

PEACH  CIDER. 

question  for  jury  whether  intoxicating 28 

PEACHES. 

effect  of  putting  of  in  brandy 27 

PENALTIES.     See  Fine. 

statutes  affixing  strictly   construed 69 

license   from   United   States  no  protection   against 84 

See  fine. 

FINE. 

sale    of    adulterated    liquor 131 

ordinance    affixing 172 

power  of  city  to  prescribe 207 

by  ordinance  for  keeping  open  saloon  after  certain  hour  not 

ex  post  facto 224 

when  sureties  on  bond  not  liable  for 340 

on    bond    left    blank 346 

of   bond   should    generally   be   stated   in 348 

statutes    as    to    generally 553 

ordinances  as   to   generally 554 

not  on  tax n  554 

contesting   validity   of   ordinance   as   to 555 

sales    to    minors 556 

amount  as   penalty  held   liquidated   damages 556 

failure  of  druggist  to  make  return 557 


iM)i:x.  807 

PENALTIES— Continued.  BBCTIOH 

sales  by  druggists ■■■ 

proceeding  to  recover  in  nature  of  a  civil  suit 

nature  of  proceeding  for 

when    cit  izcn    may    recover 

when  action  brought   by   public  official 

who    may    enforce 

officials  designated  to  sue  cannot   delegate  power 560 

for    whose    benefit    recoverable ,1,1 

indictment    as    mode    <>f    recovering 562 

waiver  of  right  as  to  civil   act  ion    for 

method  of  recovery  prescribed  by  statute 

attachment   as   mode   of   recovering 

recovery   generally,   proceeding    for 

under  different  sections  of  act,  one  action 

recovery,   extent  of 5""* 

persons  liable  for 

joint  liability  for 5C>r> 

corporations    liable    for •''^,•, 

liability   of   sureties   on   bond 566 

complaint  in  action  for 567 

complaint   need  not  negative  exception  as  to   clubs 567 

indorsement     on     summons n  •',' ' 

complaint  should  state  names  of  persons  sold  to n  567 

complaint  framed   under  common   law n  567 

answer   in   action    for ,,,s 

evidence,    admissibility 

plaintiff  need  not  prove  no  license 570 

evidence,  burden   of  proof 570 

defenses 5 

where  violation  induced  or  procured  by  officials 572 

statute  as  to,  violating  injunction G32 

PEPPERMINT  ESSENCE. 

sold  to  be  drank  as  beverage 30 

PER  CENT. 

of   alcohol   in   liquor,   evidence   showing 674 

PERMIT. 

for    removal,    application    for 239 

PERSON. 

injury    to,    civil    damages 4'" 

widow  one  within  civil  damage  act n  4^r 

"PERSON  AGGRIEVED." 

construed     ,_" 

mother  is  by  sale  to  son 491 


SOS 


INDEX. 


PERSONAL  PROPERTY.                                                                              section 
liquor  tax  certificate  in  New  York  is n  299 

PERSONAL  REPRESENTATIVE. 

of  licensee  no  right  to  sell 292 

no  recovery  by  for  death  of  intoxicated  person 495 

"  PERSON  OR  PERSONS." 

includes  corporations 235 

PETITION. 

written  petition  for  license  required 242 

for  license,  time  of  filing 243 

for   revocation   of   license 317 

for  revocation  accompanied   by  affidavits n  317 

to  recover  back  unearned  license  fee n  331 

what  should  be  alleged 242 

for  injunction   a   civil   proceeding 614 

for  injunction  and  statement,  form  and  sufficiency  of 625 

PETITION  FOR  LICENSE. 

generally 24^ 

description  and   location   of   premises 244 

by  partners,  names  should  be  given 245 

showing    as    to    residence 245 

showing  as  to  citizenship 245 

statements  in  as  to  application 245 

false    statements    in 246 

omissions  in  to  answer 246 

omission  to  state  name  of  owner  of  premises  in 247 

amendment   to 247 

defective     247 

signing   of 248 

may     be     combined n  248 

signers   cannot   withdraw n  248 

who    are    freeholders 249 

when  husband  or  wife  not  freeholder n  249 

signing  after  filing n  249 

burden  of  proof  as  to  number  of  signers  of n  249 

freeholder  must  be  bona  fide 250 

apartment  given  to  person  to  qualify  him  as  signer n  250 

where   owner  paid   for  his   consent n  256 

PETITION  FOR  LOCAL  OPTION  ELECTION. 

generally    381 

time    of    filing    of 381 

presumption    as    to 381 

not  in  compliance  with  statute 381 

"  term  "    and     "session "    of     count     distinguished,     time     of 

filing    n  381 


INDEX.  809 

PETITION  FOR  LOCAL  OPTION  ELECTION— Continued.  BBOTIOK 

unnecessary    words    in 382 

substantial  compliance  with  Btatute  sufficient 

sufficiency   of 382 

Betting  out  metes  and  bounds  of  territory  in n  382 

as  to  signers  of  petition   generally 383 

death    of    person    signing n 

withdrawal    of    names    from 

presumption   as  to  signers,  burden   of  proof 384 

duty  of  officials  as  to  determining  sufficiency  of  signatures. .   385 

PHARMACISTS.     See  Burden  of  Proof;   Druggists;  Evidence. 
Evidence. 

statutes  as  to  sales  by 124,  128 

right  to  sell  terminated  by  repeal  of  law 102 

license   laws   as    affecting 202 

liable  on  bond  though  act  done  by  clerk 356 

record    of    as    evidence 669 

request  to  for  liquor  as  evidence 669 

burden  of  proof  to  show  lawful  sale 685 

offence  by,  burden  of  proof 668 

reports  of  sales  by  as  evidence 669 

PHYSICAL  SUFFERING. 

of  wife  as  element  of  damages 482 

PHYSICIAN. 

indictment  of,  charging  matters  of  defense 650 

form   of  prescription   to   be   given   by 125 

PHYSICIANS. 

license    laws    as    affecting 202 

burden  of  proof  to  show  sale  on  prescription  of 685 

PLACE. 

of   sale  under   license 293 

wrong  number  of  street  given  in  bond 345 

evidence    as    to 676 

as  used     in    statute     requiring    description     of    place    to    be 

searched    construed 527 

of   offense,   charging   of   generally 653 

when  specific  averment  of  is  necessary 654 

PLEADING.     See  Indictment  and  Information;    Search   and   Seizure 
Laws. 

complaint  to  recover  money   paid    for   license n   199 

no  formal  pleadings  on  appeal  from  license  board n  276 

in    actions    on     bonds 365 

action  against   owner  of  premises,  civil  damages n   441 

civil   damages,   notice   not   to   sell n  445 


810  INDEX. 

PLEADING — Continued.  section 

sufficiency  of,  sale  to  intoxicated  person n  454 

complaint  or  declaration,  civil  damages 457 

amendment   of,  civil  damages n  457 

civil  damages,  sufficiency  of  in  particular  cases n  457 

misjoinder,  civil  damages n  457 

action  by  wife,  injury  to  means  of  support 477 

in    action    by    minors,    civil    damages n  493 

action  to  recover  penalty  for  sale  to  minor 556 

complaint    in    action    for   penalty 567 

answer   in   action    for   penalty 568 

petition    for    injunction   and    statement 625 

answer  to  petition  for  injunction  and  statement 626 

See  Complaint. 

PLEDGEE. 

of  license  as  party  to  proceedings  to  rovoke 319 

POLICE  COMMISSIONER. 

consent   of   majority   of   required n  254 

POLICE  OFFICER. 

testimony  of  as  to  consents  of  druggist's  register  of  sales.  . .  .   669 

POLICE  POWER.    See  Search  and  Seizure  Laws;  Taxation  of  Traffic; 
Taxes, 

statutes  to  regulate  do  not  invalidate  fourteenth  amendment..   45 

motive    and    extent    of    generally 80 

of   state   generally 80 

regulation   and   control   of  liquor   traffic 81 

legislature  may   impose  conditions  deemed   proper 82 

bond  may  be  required n     82 

state   may   prohibit   traffic 83 

cannot    prohibit   possession   of   liquors 85 

prohibition   diminishing  property   value,   no   compensation.  .86,  87 
authorizing  town  and  city  agents  to  purchase  and   sell..   96, 

97,  98,  99 

excluding  liquor   traffic   from   certain   localities 100 

consent   of   owners   of   dwelling  houses 102 

excluding    traffic    within     certain     distance     of     building     or 

place 103,  104 

as  to  premises  and  use  of 105 

as   1  o    entrances   to   saloon 106 

confining   business   to    single    room 107 

prohibiting    sales    in    hotels 108 

forbidding   obstructing  view   of   interior   of   saloon..    109,  110,  111 

prohibiting  sales  to  certain  classes  of  persons 112,  113,  114 

prohibiting   employment    of   women 115 

filing  list  of  names  of  employees 116 

closing  of  saloons  on  certain  days 117,  118,  119 


INDEX.  811 

POLICE   POWER — Continued.  section 

designation   of  hours  for  dosing 120 

as  to  drinking  on  premises  where  sold 121 

legislation  as  to  quantity 121 

requiring  seller  to  make  returns  or  keep  Btatemenl 122 

committing  sale  to  particular  classes  of  persons 

as    to    sales    by    druggists 124,   125 

requiring  prescription   for  Liquor 125 

requiring    written    application    for    liquor 128 

as  to   inspection   of   liquors !  ;" 

as  to  adulteration   of   liquor 131 

designation    of   cereals    to    be    used    in    manufacture    of    malt 

liquor 132 

as  to  furnishing  public  record  of  internal  revenue  receipt....   133 

requiring   druggist    to    obtain    license 228 

search  and  seizure  law,  exercise  of 198 

POLITICAL  SUBDIVISIONS. 

of   state,    judicial   notice   as   to ~  I 

as  to  unlawful  keeping  from  finding  of  liquor 549 

POLLS. 

hours   open,    local    option 399 

POOR. 

appropriation  of  taxes  and  fees  for 182 

recovery  of  penalty  for  benefit  of 561 

"  pop." 

as   an    intoxicating   liquor n       3 

"  POP  BEER." 

name    not    controlling 6 

POPULATION. 

of  cities  as  basis  for  taxation ••    175 

proof    of n   17:' 

PORTER. 

defined 

an    intoxicating    liquor,    judicial    notice 32 

statute  as  to  advertising  by  means  of 

PORT  WINK. 

not  a  spirituous  liquor 35 

POSSESSION. 

of    liquors    cannot    be    prohibited 85 

POSTING. 

of  notices  of  local  option  election 391,  392,  393 


812  INDEX. 

POWER  OF  ATTORNEY.                                                                                  SECTION 
to    sign    remonstrance 262 

POWERS.     See  Municipal  Corporations. 

PRACTICE. 

appeal  from  action  of  licensing  board 276 

PRECISE  LOCATION. 

sufficiency    of    in    application n  244 

PRESCRIPTION. 

for  liquor,  statute  may  require 125 

PREMISES. 

where   liquor   sold,   regulations   as   to 105 

as  to  number  of  entrances  to 106 

confining  business  to  single  room 107 

ordinance  as  to  access  of  officials  to 171 

description  of  in  petition  for  license 244 

building  described  in  application  not  erected n  244 

particular  description  of  in  application  defined n  244 

location  of  in  notice  of  application  for  a  license 251,  253 

to  be  searched,  variance  between  complaint  and  warrant....   521 

to  be  searched,  allegations  descriptive  of 527,  528,  529 

to  be  searched,  power  of  officer  as  to 539 

PRESIDENT  TAFT. 

decision  by  as  to  meaning  of  whisky  in  Pure  Food  Act.  . .  .   n     33 

PRESUMPTION. 

money  received  by  town  liquor  agent n     97 

as  to  validity  of  ordinance 142 

as  to  regularity  of  proceeding  in  levying  tax 183 

as  to  validity  of  ordinance  imposing  license  tax n  214 

that  refusal  of  license  was  for  legal  reason n  268 

as  to  license  in  action  to  recover  for  liquor  sold n  295 

as  to  petition  for  local  option  election 381 

as  to  notices  of  local  option  election 393 

as   to   preliminary     steps     from     order     declaring     result     of 

election     404 

as  to  publication  of  result  of  election 411 

as  to  knowledge  of  intoxication,  civil  damages n  454 

as  to   sale,   civil   damages n  460 

as  to   intent 680 

as  to  keeping  for  unlawful  sale 682 

as  to  knowledge  that  person  is  intoxicated 684 

PRIMA  FACIE  EVIDENCE.     See  Evidence;   Presumptions. 

finding  of  liquor  in  possession  of  accused 672 


INDEX.  813 

PRIVILEGE.  b»  I 

Liquor   traffic   is 78 

PROBABLE  CAUSE. 

issuance  of  search  warrant 519 

allegations  as  to,  probable  cause 

PEOBATE  JUDGE. 

testimony  of  as  to  issuance  of  license 

PROCEDURE. 

appeal   from   action   of   licensing   board 276 

PROCEEDINGS. 

for   forfeiture   of   liquors 551 

PROHIBIT,    power  of  city  to.     See  Municipal  Corporations. 

city  may  license  under  power  to 209 

PROHIBITED  CLASS.     See  the  Particular  Class. 

PROHIBITION.     See  Writ   of  Prohibition. 

statute,  not  ex  post  facto 46 

statute,  not  unfair  obligation  of  contract 46 

statute   as    to,   title    of 61 

statute  as  to  taking  effect  at  different  times 62 

statute,    exceptions    in 6s 

of  traffic,  state  may  enact  laws  for 83 

law  may  apply  to  liquor  manufactured  before  its  passage...'.      83 

no  power  in  state  to  prohibit  possession  of  liquors 85 

by  state,  where  property  diminished  in  value 86,  87 

of    sales    in    brothels 108 

of  sales  to  certain  classes  of  persons 112,  113,  114 

powers  of  city  as  to 138,  157 

need  not  be  a  total  one n   138 

of  traffic  in  portion  of  city  by  ordinance 156,   157 

b\-  ordinance   of  traffic  within   certain   distance  of  school   or 

church 157 

discretion  of  city  as  to 

municipal  license  fee  should  not  be  prohibitory 216 

PROHIBITORY  LAWS.     See   Police   Power;    Prohibition. 

PROOF.     See  Burden  of  Proof;   Evidence. 

PROPERTY. 

diminished  in  value  by  prohibition 86,   -7.    B8 

license   not    187 

liquor  tax  certificates  in   New  York  as 188 

local  option  law  not  a  taking  of 

injury  to,  civil  damages 47<> 

injury  to,  action  by  wife  for 4M 


814  INDEX. 

PROPERTY — Continued.  section 

seizure  of  in  connection  with  liquors 516 

to  be  seized  in  connection  with  liquors,  description  of....   n  516 

PROPERTY  OWNER. 

where  paid  for  his  consent n  250 

PROSECUTION. 

of  town  agent n     98 

burden   of   proof   to   show   offense 668 

PROTEST. 

effect  of  averment  in  as  to  unfitness n  241 

PROXIMATE  CAUSE. 

civil  damages,  application  of  rule 429 

intoxication   must  be,   civil   damages 429 

where  intoxicated  person  commits  a  crime  and  is  imprisoned.  431 
intoxicated  person  injured  or  killed  as  result  of  altercation, 

civil  damages   432 

question  for  jury,  civil  damage  cases 433 

sale  must  have  contributed  to  or  caused  intoxication 434 

PUBLICATION. 

additional  names  signed  to  petition n  250 

of  notice  of  application,  necessity  for 252 

what  are  separate  editions  of  paper n  252 

of  notice   of   application,   sufficiency   of 253 

of  notices  for  local  option  election 391,  392,  393 

of  result  of  local  option  election 40S,  409,  410,  411 

PUBLIC  RECORDS.     See  Records. 

of    licenses    as    evidence 670 

PUBLIC  USE. 

search  and  seizure  laws  not  a  taking  of  property  for 499 

PUNISHMENT. 

ordinance   providing   for 148 

PURCHASER. 

not   protected   by   license   of   vendor n  298 

intent  of  in  going  to  saloon  not  material 680 

changing   name   of   indictment 643 

PURCHASE  PRICE. 

of  liquor,  tax  assessed   upon 176 

no  recovery  for  where  sold  before  license  issued 289 

liquor   sold    to   be   retailed    in   local    option   district,   recovery 

of    n  376 


INDEX.  815 

PURE  FOOD  ACT.  se<  l 

meaning  of  whisky  as  used  in,  decision  by  President  Taft..  n     33 

Q. 

QUALIFICATIONS. 

for   license,   applicant    must  possess 240 

of    licensing'   officials 

QUANTITY. 

in  which  Bales  may  be  made 121 

near  beer,  ordinance  as  to n  169 

ordinance    as    to    169 

where  license  specifies  right    is  so  limited 288 

sale  in  prohibited  quantity,  revocation 310 

necessary  to  produce  intoxication,  evidence  as  to n  674 

QUESTION  FOR  JURY. 

whether  cider  a  vinous  or  spirituous  liquor 28 

whether    cider    intoxicating 28 

whether    peach    cider    intoxicating 28 

whether   blackberry    wine    spirituous 35 

w  hether  compounds  intoxicat  ing 41 

proximate   cause,  civil    damage   cases 433 

whether  defendant  caused  or  contributed   to   intoxication....    435 

whether  sale  caused  or  contributed   to  intoxication 435 

whether  wife  contributed  to  injury  of  husband n   485 

where  liquors  delivered  to  carrier n   508 

effect  of  sale  by  defendant's  servants n  681 

to  good  faith  of  instructions  to  agent n   687 

QUO  WARRANTO. 

to  test  validity  of  license 267 

K. 

RAILROADS. 

statute  limiting  right   of  to  bring  liquor  into  state 

signing  of   remonstrance   by   superintendent    of 

REASONABLE. 

ordinances  should   be 142 

REBATE. 

right   to  recover  in  New   York 303 

municipality  may  provide  for  revoking  without  rebate 304 

forfeiture   of,    license    to    partners 314 

effect    of   stipulation    that    revocation    illegal n   330 

on  revocation,  right  to  where  no  statute 330 

right    to,    where    statute 331 


816  IXDJSK. 

REBATE — Continued.  section 

sufficiency   of   petition   to   recover n  331 

surrender    of    certificate,    New    York 332-336 

procedure  to  obtain,  New  York 334 

mandamus    to    obtain 335 

right  of  assignee  to  rebate,  New  York 336 

liquor  tax  certificate,  rights  of  receiver 336 

rights  of  licensee  as  affected  by  acts  of  employe 337 

effect  of  surrender  of  certificate  before  discovery  of  violation.   338 
paid  by  city,  curative  act  constitutional n  304 

RECEIPT. 

for  license,  mandamus  to  compel  issuance  of 273 

for   tax   as    evidence 669 

RECEIVER. 

license  for  hotel  in  hands  of 234 

right  to  rebate,  liquor  tax  certificate 336 

liquors  in  custody  of,  seizure  by  officers,  contempt 540 

RECITALS. 

in  bond  345 

RECOMMENDATION. 

for  license,  signing  of 248 

RECORD. 

town  agent  required  to  keep n     98 

what  should  show  as  to  fitness  of  applicant n  241 

as  evidence  of  breach  of  bond 366 

as  to  order  for  local  option  election 390 

as  to  local  option  election 407 

of  assessor  of  taxes,  when  not  admissible  in  evidence 669 

of   druggist    as   evidence 669 

as   evidence    669 

showing  granting  of  license,   evidence 670 

of  United  States  revenue  collector  as  evidence n  683 

RE-ENACTMENT. 

of   statute   judicially   construed 66 

REFEREE. 

appointment  of  in  proceedings  to  revoke 323 

REFRIGERATOR. 

right  to  seize,  search  and  seizure 516 

REFUSAL. 

to   issue   license,   effect   of 230 

REGISTER. 

to  keep  count  of  drinks,  statute n  176 

of   sales   of   druggist   as   evidence 669 


INDEX.  817 

"REGISTERED   VOTES."                                                                                SEOTIOH 
"  legal  votes"   synonymous   with,   local    option    petition 383 

REG1  LATION.    Bee  Municipal  Corporations;  Municipal  powera  and 
regulations;  Ordinances;    Police  Power;   State;   Statutes. 

of  traffic,   dispensary    law '' 

town  and  city  agent  to  purchase  and  sell 96,  97,  98,  99 

excluding  liquor  traffic  from  certain  localities l"11 

designating  saloon  Limits  in  cities  and  towns loi 

statute  requiring  consent  of  owners  of  dwelling  houses 102 

excluding     traffic     within     certain     distance     of     building     or 

place    103,    104 

as  to  premises  and  use  of 105 

as    to    entrances    to   saloons 106 

confining  business  to  single  room 1"~ 

sale  in  brothels 108 

forbidding  obstruction  of  view  of  interior  of  saloon.  .    109,   110,  111 

prohibiting  sales  to  certain  classes  of  persons 112 

prohibiting  sales  to  minors '  ' 

prohibiting  sales  to  females 114 

prohibiting   employment   of   females 115 

filing  list  of  names  of  employees 116 

closing  of  saloon  on  certain  days H? 

closing  of  saloons  on  Sunday 118 

closing  of  hotels  on  Sundays 119 

designation  of  hours  for  keeping  closed 120 

legislation  as  to   quantity 121 

requiring  seller  to  make  returns  or  keep  statement 122,  127 

committing  sale  to  particular  classes  of  persons 

as  to  sales  by  druggists 12  I 

requiring  written  application  or  request 128 

as  to  sales  by  social  clubs 129 

inspection    of    liquors 130 

adulteration    of   liquors 131 

designation  of  cereals  to  be  used  in  manufacture  of  malt   liq- 
uors       132 

as  to  furnishing  public  record  of  internal  revenue  receipt.  ... 

power  to  regulate  confers  no  power  to  prohibit 139 

purpose  of  license  is 

as  to  license,  power  of  city 210 

RELIGIOUS  INSTITUTION. 

excluding    traffic    within    distance    of 103,   104 

REMONSTRANCE. 

effect   of  averment    in  as   to   unfitness n   241 

should  be  filed   in   accordance   with    provisions   of   statute 260 

court  cannot  on  appeal  allow  new  remonstrance  filed 260 

when  relates  to  second  applical  ion 260 

generally    2^0 


818  INDEX. 

REMONSTRANCE— Cont  inued.  section 

who  may   remonstrate 261 

where    statute    does   not    prescribe    qualifications    of    remon- 
strants       261 

mode  of  determining-  majority  of  voters n  261 

owner  of  land  defined n  261 

signing-    of 262 

persons  may  remonstrate  through  attorney 262 

error  by  attorney  in  signing  name  to n  262 

right  to  withdraw  from 263 

form  and  sufficiency  of 264 

on    ground    of    immorality 264 

amendment  to    264 

to   be   verified   by   affidavit 264 

surplusage    in 264 

several  copies  construed  as  one 264 

specification  of  causes  in 264 

mandamus   to   compel   action   on 265 

attendance  of  witnesses  on  hearing  may  be  compelled 265 

proceeding  on  a  judicial  one 265 

appeal 265 

rules  as  to  evidence  on  hearing  of 265 

fixing  time  for  hearing  of 265 

procedure  and  hearing  of 265 

no    appeal    from    order    overruling n  275 

statute  as  to  granting  of  license  within  certain  time  after. . . .   278 

REMONSTRANTS.     See  Remonstrance. 

REMOVAL  PERMITS. 

application  for 239 

REMOVAL. 

of  license,  right  to 226 

of  license,  inability  to  obtain 229 

REPEAL. 

repealing  laws   construed 71 

by    implication     72 

act  requiring  record  by  druggist n  127 

of  ordinances,  or  mnnieipal  powers  by  general  law 150 

of  general  law  by  act  conferring  power  on  city 151 

of  ordinance  by  later  one 154 

of  license  laws 191,  192^  193 

power  to  city  to  license  not  a  repeal  of  general  law 208 

of  municipal  powers  to  license 225 

of  license   law  as   revoking  license 307 

of   law   subsequent   to   execution   of   bond 341 

by   implication    not    favored,    local    option 372" 

of  prior  laws,  local  option    law  as 374 

of  civil  damage  act,  effect  of 426. 


INDEX.  819 

REPEALING  LAWS.                                                                                      section 
construction    of    71 

REPLEVIN. 

to  recover  liquors  seized 544 

for  liquors  seized,  power  of  officer  to  consent  to  judgment. .   n  544 

REPORTS. 

of   sales   by    druggists 127 

by  druggist,  sufficiency  of n  127 

of  names  of  liquor  sellers,  ordinance  as  te n  210 

penalty  for  failure  of  druggist  to  make 557 

by    druggist    as    evidence 669 

RESIDENCE. 

sections  of  city,  exclusion  of  traffic  from 156 

and  business  sections,  ordinance  not  defining  boundaries  of.  n  156 

words  "  residence  "  portion  in  statute  construed n  156 

as  prerequisite  to,  right   to  license 201 

section,  statute  conferring  power  on  city  as  to 221 

when   petition   for  license   should  show 245 

RESIDENCE  PORTION. 

in    statute    construed n  156 

RESTAURANTS. 

right  to  refuse  license  to  sell  in n  234 

RESTRAIN.     See  Regulations. 

power  to  confers  no  power  to  prohibit 139 

city  may  license  under  power  to 209 

RESUBMISSION. 

of  question  of  local  option 415,  416 

RETAILERS. 

taxation  of   178 

RETROACTIVE  EFFECT. 

license    has    none 289 

RETURN. 

of  sales  by   seller  may  be  required 122 

of  sales  by  druggists 127 

of    local    option    election .    403 

of  officer,  search  and  seizure 543 

penalty  for  failure  of  druggist   to  make 557 

RETURN  DAY. 

proceeding  to  revoke,  extension  of n  320 


820  INDEX. 

REVENUE.                                                                                                    section 
purpose  of  license  not   for 185 

REVENUE  COLLECTOR. 

copy  of  record  of  as  evidence n  683 

return  made  to  as  evidence n  683 

REVENUE  TAX. 

books  showing1  payment   of,   evidence 669 

REVOCATION. 

of  license,  power  of  city  as  to  imposing-  conditions  as  to....   220 

obligation  of  contract  not  impaired  by  statute  as  to n  303 

statute   as  to   construed n  303 

right   to   revoke   generally 303 

municipality  not  liable  in  tort  for  mistaken  action  as  to....   304 

power  of  municipality  as  to 304 

mandamus  to  review  action  of  city  council  as  to 304 

where  statute  specifies  causes 305 

effect  of  expiration  of  license 306 

by   repeal   of   license   law 307 

where  license  contains  provisions  as  to  forfeiture 308 

conducting  business  at  another  place 309 

failure  to  display  certificate 309 

gambling  on   premises 309 

conducting    place    in    disorderly    manner 309 

grounds    of    generally 309 

unlawful  sales   310 

sale  unlawful,  no  defense  made  in  good  faith 310 

statements  in  application  strictly  construed  against  applicant.  311 

false   statements   in   application 311 

statement  as  to  continuous  occupation,  suspension  by  fire  or 

accident    312 

conviction  for  felony  under  New  York  law 313 

word  "  conviction  "  construed 313 

violation    of    lav/,    conviction    for 313 

to  partners,  violation   of  law 314 

sufficiency  of  service  of  order  to  show  cause n  314 

issued  to  club  organized  to  evade  law 315 

to  hotels    316 

petition    for    317 

answer  in  proceedings  for   318 

parties  to  proceedings   319 

who  may  intervene 320 

when  court  may  order  discontinuance n  320 

stipulation  by  parties  as  to  use  of  premises n  320 

extension  of  return  day  if  order  to  show  cause n  320 

proceedings  for  321 

where  licensee's  attorney  absent '. n  321 

waiver  of  proper  notice  of  proceedings 322 


INDEX.  g2] 

REVOCATION— Continued.  sect  eos 

necessity  of  notice  of  proceedings  322 

appointment  of  referee 

exercising  power  as  t<>  mandamus :;:.'! 

disqualification   of  member   of  board n  324 

evidence  in  proceedings  for 325 

Btaying  proceedings    

no  right  to  trial  by  jury 327 

costs   of   proceedings 

reviewing,    action,    certiorari 329 

right  to  rebate,  no  statute 330 

right  to  rebate,  where  statute 331 

right  of  licensee  as  affected  by  acts  of  employe 337 

effect  of  surrender  before  discovery  of  violation 338 

RIGHT  TO  SELL  LIQUOR. 

not  inherent 77 

nature    of 7  s 

constitutional  provisions  affecting 79 

RIGHTS  UNDER  LICENSE. 

as  affected  by  terms  of 288 

must  sell  in  class  issued  for 288 

to  sell  in  certain  quantities 288 

to  sell  for  medicinal,  chemical  and  mechanical  purposes 288 

separate  license  for  distilling  and  selling n  288 

no  recovery  for  liquors  sold  before  issued 289 

takes  effect  from  date  of  issuance 289 

when  license  takes  effect 289 

does  not  operate  retrospectively 289 

duty  to  obey  laws,  as  to  employes 290 

licensee  may  sell  by  agent 291 

licensee  can  not  violate  by  means  of  agent 291 

personal  representative  of  licensee  no  rights  to  sell 292 

license   to   sell   within   a  county  part  of  which   prohibitory   law  in 

force     293 

can  only  sell  at  place  specified 293 

as  to  place  of  sale 293 

removal  of  licensee  to  another  county 29  '■'• 

as  to  sending  out   agent  a 293 

to  distiller D  293 

when-  board  prescribes  unauthorized  hours 294 

to    firm 295 

to    member    of    firm 2'.».""> 

to  otlicer  of  corporation 296 

duration  of  license 297 

term  "  each  calendar  year  "  construed 297 

license    not    assignable 298 

vote  for  transfer  of  license  void 298 

license  not  subject  of  chattel  mortgage n  29S 


$22  INDEX. 

RIGHTS  UNDER  LICENSE— Continued.  SECTION 

transfer  of  liquor  tax  certificate  in  New  York 299 

transfer   of  license  in   Pennsylvania 300 

license  as  subject  of  levy  sale 301 

as  to  stocks  and  fixtures 302 

on  termination  of  license " 302 

of  licensee  as  affected  by  acts  of  employee,  revocation,  rebate.  .  .  .  337 

ROOM. 

statute  confining  business  to  single  room 107 

description  of  in  application n  244 

s. 

SALES  by  clubs.     See  Clubs;  Social  Clubs. 

in  original  packages,  laws  as  to  prior  to  Wilson  Act 51 

making  returns  or  keeping  statement  of 122 

returns  of  by  druggists 127 

unlawful,  revocation  for 310 

reports  of  by  druggist  as  evidence 669 

SALES  BY  SOCIAL  CLUBS.     See  Social  Clubs. 
SALOON. 

defined  15 

statute  as  to  devices  for  amusement  or  music  in  saloons 66 

statutes  as  to  entrances  to 106 

closing  of  on  certain  days 117,  118,  119 

designation  of  hours  for  closing 120 

ordinance  as  to  closing  of  by  force 146 

as  used   in   statute  construed 146 

SALOON  LIMITS. 

designation  of  in  cities  and  towns 101 

SAME  STREET. 

as  used  in  statute  construed n  194 

SATISFACTION. 

where  defendants  jointly  liable,  civil  damages 440 

SCHOOL  DISTRICTS. 

appropriation  of  taxes  and  fees  to 182 

SCHOOL  FUND. 

recovery   of  penalty   for   benefit   of 561 

SCHOOLHOUSE. 

as  used  in   license   laws   construed 259 


tNDEX.  vj;; 


SCHOOLS. 


ordinance  prohibiting  traffic  within  certain  distance  of 157 

excluding   traffic   within   certain   distance  of l"l 

SCREENS. 

use  of  may  be  prohibited 1"",  1 10,  1 1 1 

ordinances  as  to 159,  160 

in  places  where  near  beer  sold,  ordinance n    159 

SEAL. 

want  of  on  bond  no  defense n  307 

SEARCH.     See  Search  and  Seizure  Laws. 
SEARCH  AND  SEIZURE  LAWS. 

generally     408 

constitutionality  of,  generally 498 

not    class    or    special    legislation 498 

exercise   of   police   power 498 

when  not  ex  post  facto 498 

ordinance  as  to,  held  invalid n  498 

nol  a  taking  of  private  property  for  public  use 499 

not  invalid  as  denying  right  of  trial  by  jury 500 

nature  of  proceeding  for  forfeiture,  proceedings  in  rem 500,  545 

whether  proceedings  for  forfeiture  civil  or  criminal 500.  .">  W> 

statutes  as  to,  generally 501 

statute  as  to  destruction  of  liquors,  held  unconstitutional r> < »i2 

statute  as  to  appeal 502 

st  atute   as   to   bond 502 

particular   statutes  construed 502 

statute  not  limiting  authority  of  officers  held  unconstitutional 502 

as  to  unreasonable  searches  and  seizures 503 

limitations  on   legislative  power 503,  504 

constitutional  provision  as  to  warrant,   statute  construed .">") 

liquor  which  may  be  seized,  generally 505 

liquor  to  be  transported  to   Federal  territory   in   state 505 

liquor  in  hands  of  municipal  otficers 505 

liquor  in  hands  of  bailee 500 

seizure  of  property  used  in  transporting  liquor 507 

seizure  of  liquors  in  transitu 507 

seizure  of  liquor  in  hands  of  carrier 508 

liquors  shipped  into  prohibited  district 508 

liquors  shipped  into  prohibited  territory,  contract  of  sale  completed 

there    509 

liquors  shipped  from  another   state,   [owa 510 

liquor  shipped   from  another  stale,   Maine ."■11 

liquor  shipped  from  another  state.  South  Carolina 512 

liquor  shipped   from   another   state.   Vermont 513 

sworn  complaint ,">1^ 

time  warrant   remains   in   force 519 


324  INDEX. 

SEARCH  AND  SEIZURE  LAWS— Continued.  section: 

warrant    generally 519 

warrant  supported  by  oath  of  complainant 519 

issuance  of   warrant,   probable  cause 519 

warrant  should  describe  only  one  place n  519 

warrant  valid  when  issued,  subsequent  omission  in  proceedings.  .   n  519 

wlien  justice  entitled  to  fees n  519 

misrecital  in  warrant  as  to  who  issued  by n  519 

recital  in  warrant  controlling  jurat n  519 

liquor  shipped  from  another  state,  United  States 514 

liquor  shipped  from  another  state,  conclusion 515 

vessels   containing   liquors 516 

refrigerator     516 

seizure  of  property  in  connection  with  liquors 516 

beer    faucet 516 

description  of  property  to  be  seized  in  connection  with  liquors.  .   n  516 

complaint,    generally 517 

"  house  "  not  equivalent  of  "  dwelling  house  " n  517 

defacement  of  complaint n  517 

complaint  not  supported  by  verdict n  517 

duty  of  judge  to  issue  warrant n  519 

warrant  of  arrest  and  search  warrant  in  one  instrument 520 

warrant  and  complaint  in  one  instrument 526 

surplusage   in   warrant 521 

variance  between  complaint  and  warrant 521 

who    may    complain 522 

alleging   probable   cause 523 

allegations,  as  to  liquors,  kinds 524 

allegations  as  to  mixed  liquors n  524 

allegation  as  to  intent,  keeping  for  unlawful  sale 525 

allegations  as  to  owner  or  keeper 526 

constitutional  provisions  requiring  description  of  place  construed..   527 

"  place  "  as  used  in  statute  requiring  description  construed 527 

description  of  place  to  be  searched 527,  528,  529 

description  of  place  in  warrant  should  be  as  certain  as  in  deed.  .   n  527 

sufficiency  of  particular  descriptions  of  place  to  be  searched 529 

making  search  in  night  time 536 

time  of  service  of  warrant 536 

search  and  seizure  without  warrant,  generally 531 

seizure  without  warrant,  allegations  in  complaint  and  warrant.  . .  .    532 

as  to  arrest  of  person  having  liquors  in  possession 533 

arrest   without   warrant 534 

effect  of  seizure  of  more  liquors  than  authorized 535 

notice  of  seizure 53(5 

claimants,  effect  of  appearance,  waiver  of  defects 537 

appearance  not  waiver  of  jurisdictional  defects  in  process 537 

power  and  liability  of  officer  serving  process,  generally..   538,  539,  546 

as  to  fees  of  officers n  538 

service  of  warrant  by  officer  not  directed  to n  538 

power  of  officer  as  to  place  of  search 539 


1NDKX.  825 

SEARCH   AND  SEIZURE  LAWS— Continued.  section 

unauthorized  seizure  by  officer,  liability 540 

seizure  by  officer  of  liquors  in  custody  of  receiver,  contempt 540 

duty  of  officer  as  to  keeping  of  liquors 541 

acts  of  oilicer  de   facto 542 

officer's    return >43 

actions  to  recover  liquors  seized,   replevin 544 

liquor  seized  is  in  custodia  legis 5  1 1 

power  of  officer  to  consent  to  judgment  in  replevin n   544 

statute  declaring  proceedings  to  be  in  rem n   545 

value  of  liquors  as  affecting  jurisdiction n  546 

proceedings  for  forfeiture  and  punishment  of  offender  are  separate.    547 

no  defense  that  intent  was  thai  of  agent  of  owner,  forfeiture 548 

finding  as  presumptive  evidence  of  unlawful  keeping,  statutes 549 

evidence    generally    550 

evidence  of  sales  as  showing  intent  to  unlawfully  sell 550 

liquors  seized   as  evidence " 

necessity  of  proof,  as  to  place  of  seizure 550 

evidence  necessary  for  condemnation  of  liquors >  >1 

proceedings  for  forfeiture,   judgment   for 551 

statute  as  to  "  forthwith  "  proceeding  to  prosecute  for  forfeiture  n   55 1 

making  claim  for  liquors  seized "   551 

claimant  of  liquors  bound  by  written  claim n  551 

right  to  return  of  liquors  seized 552 

liquors  seized  as  evidence  of  unlawful  keeping 682 

SEATS. 

ordinance  as  to n  1"*1 

SEIZURE.     See  Search  and  Seizure  Laws. 

SERVANT. 

licensee  may   sell  by 291 

of  defendant,  question  for  jury  as  to  effect  of  sale  by a  681 

evidence  as  to  violation  of  instructions  by 687 

evidence  as  to  sale  by  may  be  sufficient 

SERVICE. 

of  notice  not  to  sell,  civil  damages 445 

of  notice  not  to  sell,  allegation  of "  445 

of  warrant,  time  of,  search  and  seizure  laws 530 

of  notice  of   seizure,   waiver  of   defects   in 536 

of  warrant  by  officer  not  directed  to,  search  and  seizure a  538 

SHERIFF. 

right  to  levy  on  license 301 

of  petition   for  license  cannot  withdraw n   248 

SIGNERS. 

to  petition  for  license 248 

after  filing  of  petition n  249 


§26  INDEX. 

SIGNERS — Continued.  SECTION 

of  petition,  burden  of  proof  as  to  requisite  number  of n  249 

of  petition  given  apartment  to  qualify  him  as  signer n  250 

of  petition  paid  for  his  consent n  250 

of  consents,  sufficiency 255 

of   remonstrances 261,  2G2 

of  remonstrance,  right  to  withdraw 2G3 

of  remonstrance,  burden  of  proof  to  show  are  freeholders 266 

petition  for  local  option  election 383,  384,  385 

of  petition   local  option  election,  withdrawal n  383 

SIGNING. 

of  petition  for  license 248 

of  bond,  sufficiency  of n  367 

SINGLE  STAMP  SPIRITS. 

term   construed n  177 

SMALL  BEER. 

intoxicating    20 

SOCIAL  CLUBS. 

statute  as  to  sales  by 129 

ordinance  as  to  invalid 138 

license  to,  power  of  city n  206 

statute  allowing  distribution  on  payment  of  tax n  226 

organized  to  evade  law,  revocation  license  to 315 

complaint  for  penalty  need  not  negative  exception  as  to 567 

sales  by  generally 573 

sales  by,  Alabama 574 

sales  by,  California 575 

sales  by,  Colorado 576 

sales  by,  District  of  Columbia 577 

sales  by,  Georgia 578 

sales  by,  Illinois 579 

sales  by,  Indiana 580 

sales  by,  Iowa 581 

sales   by,    Kansas 582 

sales   by,   Kentucky 583 

sales   by,  Louisiana 584 

sales  by,  Maine 585 

sales  by,  Maryland 586 

sales  by,  Massachusetts 587 

sa  lea  by.  Michigan 588 

sales  by,  Minnesota 589 

sales  by,  Mississippi 590 

sales  by.  Missouri 591 

sales  by,  Montana 592 

sales  by,  Nebraska 593 

sales  by,  New  Jersey 594 

sales  by,  New  York 595 


[NDEX.  827 

SOCIAL  CLUBS— Continued.                                                                        section 
sales    l>y,    North    Carolina 596 

sales  by,  Oregon ">'■'< 

sales  by,  Pennsylvania 

sales  by,  South  Carolina 599 

sales  by,  Tennessee 600 

sales  by,  Texas 601 

sales  by,  Virginia 602 

sales  by,  Washington 603 

sales  by,  Wesl  Virginia 66  ' 

sales  by,  United  States 61 '•"' 

sales  by,  England (i,,r' 

sales  by,  conclusion 60' 

as  a  nuisance,  abatement 616 

SOLDIERS'  HOME. 

excluding  t  raffic  within  certain  distance  of 103 

SOLICITING  ORDERS. 

st atutes  as  to 59 

SPECIAL  LAWS. 

generally  62 

local  option  law  not 3<  0 

prohibit  ing  sale  in  certain  county 100 

statute  as  to  taxes  not 1  i  '■> 

SPELLING. 

errors  in,  indictments 639 

SPIRITOUS. 

for  spirituous  in  indictment 030 

SPIRITUAL. 

for  spirituous  in  indictment. 03!) 

SPIRITUOUS  LIQUORS. 

defined  and  considered >  ■  8 

do  not   include  malt   or  fermented  liquors 

where  statute  enumerates  certain  liquors  as 9,  10 

alcohol  as 1  ■ 

ale    not Is 

does  not    include  lager  beer '- t 

brandy   is.  judicial  notice 26 

cider  not 28 

whisky  as 33 

whether  blackberry  wine  is.  question  for  jury 35 

wine   as •'•' 

port    wine   not 3.) 

gum   camphor  and  alcohol   mixed   not n  40 

Jamaica    ginger    as 41 

evidence  sustaining  allegation  of  sale  of 675 


£28  INDEX. 

STALLS.  section 

ordinances  as  to 160 

STAMPS. 

internal  revenue  stamps  on  beer  kegs  as  evidence 675 

STATE.  See  Constitutionality;  License;  Police  Power;  Prohibition; 
Regulation;  Statutes;  United  States  Constitutional  Pro- 
visions Affecting  Laws. 

power  of  as  affected  by  United  States  constitution 43-60 

Fourteenth  Amendment  as  affecting  power  of 44,  45 

may  prohibit,  not  ex  post  facto  law 46 

may  prohibit,  not  impair  obligation  of  contract 46 

may  require  license  fee,  not  a  taking  of  property  without  due 

process  of  law 47 

particular  acts  construed  with  reference  to  federal  constitution ....  47 

power  of  as  affected  by  United  States  Constitution,  commerce.  .   48,  49 

cannot  regulate  interstate  commerce  without  consent  of  Congress .  .  48 

power  of  as  to  commerce,  rules  stated  in  Vance  v.  Vandercook.  49 

power  of  as  to  interstate  shipments 50 

power  of  as  to  sales  in  original  packages  prior  to  Wilson  Act.  ...  51 

power  to  forbid  keeping  of  liquor  for  sale,  interstate  commerce..  52 

cannot  forbid  shipment  into  state 53 

effect  of  Wilson  Act  on  powers  of 54,  55,  57 

cannot   prohibit   citizen   from   ordering   and   receiving   liquor   from 

another    state '.   55,  56 

power    to    regulate    traffic 76-99 

control  of  generally,  police  power 80 

may  regulate  and  control  sale  of  liquor 81 

may  impose  conditions  deemed  proper 82 

may  prohibit  traffic 83 

may  prohibit  traffic,  generally 83 

cannot  prohibit  having  liquor  in  one's  possession 85 

power  of  to  engage  in  liquor  traffic 88 

power  to  authorize  dispensaries 90-95 

may  authorize  town  or  city  agents  to  purchase  and  sell  96,  97,  9S,  99 

may  exclude  traffic  from  certain  localities 101 

may  designate  saloon  limits  in  cities  and  towns 101 

may  require  consent  of  owners  of  dwelling  houses 102 

may  regulate  sale  for  medical  purposes  in  local  option  districts.  .   n  125 

may  delegate  power  to  municipal  corporations 134 

burden  of  proof  on  to  establish  offense 668 

STATE  AGENT. 

sales  by  for  cash n  98 

"  STATE  LAW." 

construed    313 

STATEMENT. 

showing  sales,  keeping  of  may  be  required 122 


INDEX.  829 

STATEMENT— Continued.  SECTION 

of  sales  by  druggists 127 

of    consent,    Iowa 380 

STATUTES.  See  Bonds;  Civil  Damage  Acts;  injunction  and  Abate- 
ment; License;  Local  option  Laws;  Penalties;  Search  and 
Sci/ure  Laws;  Taxes. 

conferring  power  on  municipal  corporations.     See  Municipal 
Corporations. 

making  all  malt  liquors  intoxicating Hi 

declaring  fermented  drinks  intoxicating 1<» 

naming  certain  liquors  as  iiitoxient  ing (I.  10 

enumerating  certain  liquors  as  spirituous !>.  in 

declaring  lager  beer  to  be  intoxicating 2", 

declaring  cider  intoxicating 30 

including  wine  as  an  intoxicating  liquor 3G 

fourteenth    amendment    as    affecting 44 

prohibiting  not  an  ex  post  facto  law 46 

prohibiting  docs  not  impair  obligation   of  contracts 4''> 

as  affected  by  United  States  Constitution,  particular  statutes....  47 

affecting  commerce,  generally 4s.  49 

discriminating  by  tax  against  products  of  other  states .".1 

affecting  sales  in  original  packages,  prior  to  Wilson  Act 51 

forbidding  keeping  of  liquors  for  purpose  of  sale  in  another  state.  .  52 

forbidding  shipments  into  state 53 

prohibiting  right  to  order,  application  to  state  official 56 

forbidding  transportation  within  state  construed 57 

as  to  place  of  delivery  and  sale 58 

as  to  soliciting  of  orders f>!> 

as  to  advertising 60 

constitutional    provisions    as    to    title    and    subject    matter    of    act 

construed     61 

local  or  special  laws  generally 62 

taking  effect  at  different  dates t'rj 

regulating  sale  in  particular  locality  not  local  law t;-2 

to  be  general  and  uniform,  an  operation 63 

making  distinction  between  distillery  or  brewery  and  saloon 

as  to  intoxicating  liquors,  construction  of  generally I 

rule  as  to  construction  of  generally 65 

intent,  of  legislature  to  be  considered  in  construing 66 

as  to  devices  for  amusement  or  music  in  saloons 

word  "  town  "   in   construed G(i 

judicially  construed,  re-enacted 66 

where  part  of  act    invalid t',7 

as  to  except  ions   in,   rule  of  cons)  met  ion GS 

affixing  penall  ies  si  rid  ly  const  rued !','.> 

construction   of  amendments  to 7o 

repealing  laws  generally 71 

repeal  by  implication 72 


830  ^EX- 

STATUTES— Continued.  SECTION 

general  law  as  repeal  of  a  local  law 72 

denouncing  two   separate   offenses 73 

judicial  notice  of  political   subdivisions   in  construing 74 

one  not  affected  by  law  can  not  question  validity 75 

prohibiting  traffic   constitutional 83 

prohibiting  possession  of  liquors 85 

reluctance  of  courts  to  interfere  with n     82 

creating  dispensaries  construed 90-95 

authorizing  town  and  city  agents  to  purchase  and  sell.    96,  97,  98,     99 

requiring  town  agent  to  keep  record n     98 

excluding  traffic  from  certain  localities 100 

designating  saloon  limits  in  cities  and  towns 101 

requiring  consent  of  owners  of  dwelling  houses 102 

excluding  traffic  within  certain  distance  of  building  or  place.  .    103,  104 

as  to  premises  and  use  of 105 

confining  liquor  dealer  to  one  place  of  business  constitutional  n  105 

as  to  entrances  to  saloons 106 

confining   business   to   single   room 107 

prohibiting  sales  in  brothels 108 

forbidding  obstructing  view  of  interior  of  saloon 109,  110,  111 

prohibiting  sales  to  certain  classes  of  persons 112 

prohibiting  sales  to  women 114 

prohibiting  employment  of  women 115 

filing  list  of  names  of  employees 116 

as  to  closing  saloons  on  certain  days 117,  118,  119 

word  "  closed  "  in  construed n   118 

designating   hour   of   closing 120 

as  to  quantity  in  which  liquors  may  be  sold 121 

as  to  drinking  on  premises  where  sold 121 

requiring  seller  to  make  returns  or  keep  statement 122 

committing  sale  to  particular  classes  of  persons 123 

placing  druggists  on  same  footing  with  others n  124 

as  to   sales   by  druggists 124-128 

requiring  prescription   for  liquor 125 

requiring  written  application  for  liquor 128 

as  to  sales  by  social  clubs 129 

as   to    inspection    of    liquors 130 

to   prevent  adulteration   of  liquor 131 

designating  cereals  to  be  used  in  manufacture  of  malt  liquor 132 

as  to  furnishing  public  record  of  internal  revenue  receipt 133 

conferring  power  on  municipal  corporations 133,   134,   135 

repealing  ordinances  and  municipal  powers 150 

ordinance  incorporating  provisions  of n  144 

word  "  saloon  "  in  construed 146 

act  conferring  power  on  city  as  repealing  general  law 151 

construing  statutes  and  ordinances  together 152 

and  ordinance  making  same  act  an  offense 153 

words  "  residence  portion  "  in  construed n  156 

general  rule  as  to  charging  offense  in  language  of 662 


INDEX.  831 

STATUTES— Continued.  section 

as  to  finding  of  liquor  being  presumptive  evidence 549 

rule  as  to  charging  exceptions  in 663 

a]. plication  of  rule  as  to  charging  exceptions  in 664 

as  to  finding  liquor  in  possession  of  accused,  evidence 672 

making  United  States  license  prima  facie  evidence C83 

STAY. 

of  proceedings  to  revoke 326 

STEAMER. 

license  to  sell  on n  218 

STIPULATION. 

by  parties  as  to  use  of  premises,  revocation  proceedings n  320 

that  revocation  illegal,  suit  to  recover  fee n  320 

STOCK. 

rights  of  licensee  as  to 302 

STRONG  BEER. 

"  strong  or  spirituous  liquors  "  includes 18 

an  intoxicating  liquor 20 

"  STRONG  OR  SPIRITUOUS  LIQUORS." 

ale  and  strong  beer  included  in 18 

STORAGE. 

cf  liquors,  license  required  for  place  used  for 22s 

liquors  kept  in  as  evidence 682 

SUICIDE. 

recovery  for  under  civil  damage  act 429 

SUMMONS. 

indorsement  on,  action  for  penalty 567 

SUNDAY. 

sales  on  prohibited,  construction  of  statute  as  to,  repeal 72 

statute  as  to  keeping  open  and  selling  construed 73 

closing  of  saloons  on 118 

closing  of  hotels  on 11^.   11!' 

ordinance  requiring  closing  on 164 

ordinance  as  to  Sunday  closing  of  places  where  Bold n  l»i4 

revocation  license  to  hotel  for  sale  on 316 

sales  on  as  breach  of  bond :!~>:> 

sales  on,  nature  of  action  to  recover  penalty  for 558 

sales  on,  indictment .  charging  of 659 

evidence  as  to  sales  on 678 


832 


INDEX. 


SUNDAY  —Continued.  section 

evidence  where  indictment  names  a  date  not  falling  on 678 

keeping  open  on,  evidence  in  defense 679 

evidence  as  to  keeping  open  on 679 

evidence  showing  intent  to  sell  on 680 

SUPERINTENDENT. 

of  railroad  company  as  signer  of  remonstrance 262 

SUPERSEDES. 

does  not  suspend  order  of  prohibition n  100 

SURETIES. 

liability  not  extended  beyond  terms  of  bond 340 

liability    on    bond    generally 340 

liability  terminated  by   dissolution  of  firm n  340 

on  bond,  who  may  be 347 

no  liability  on  bond  where  license  void  from  inception 357 

not   liable  after  surrender  of  license  or  certificate 358 

as  to  release  of 362 

may  recover  from  without  first  exhausting  property  of  principal..  363 

cannot  set  up  their  neglect  as  a  defense 367 

want  of  seal  no  defense n  367 

on  bond,  liability  for  penalty 536 

SURPLUSAGE. 

in  title  of  ordinance 143 

in    remonstrance 264 

misrecital  in  bond 345 

in  search  warrant 521 

in  indictment  does  not  vitiate 648 

SURRENDER.     See  Rebate. 

right  to  rebate,  New  York 332-336 

procedure  to  obtain  rebate,  New  York 334 

of  liquor  certificate,  surety  on  bond  not  liable  for  act  after 358 

SWEET  CIDER. 

used  to  distinguish  from  hard  cider 28 

T. 

TAVERN. 

defined n     15 

license  for 234 

as  used  in  statute  construed n  2.'! 4 

license  for  not  assignable n  2 

revocation   license   to 31 G 


INDEX.  833 

TAXES.  section 

discriminating  against  products  of   other  states 51 

imposing  of  by  ordinance   under  general  welfare  clause It'. 

not   levied   on   basis  of   business  done,  uniform 173 

payment    of    in    advance 173 

statutes  as   to  constitutional 173 

taxation   of  traffic  generally L73 

on  a  business  of  a  specific  annual  sum n   17:; 

listing  persons  for  assessment   of n   17  I 

order  of  county  authorities  as  to  construed n   17:; 

injunction   against   enforcement  of   law n    17: 

adoption  local  option  exempts n  173 

statute  may  impose  lax  and  provide  for  its  collection n   173 

property  not  to  be  twice  taxed  for  same  privilege n  173 

may  levy  though   traffic  prohibited 174 

where  constitution   forbids  legislature  to  authorize  grant   of 

license 174 

levying  of  not  a  license n  174 

population   of  cities  and  towns  as  basis 175 

classification    by    legislature 171 

classification    for    must    be    reasonable 17", 

assessed  on  purchase  price  of  liquor 176 

based    on    amount    of    business 176 

register  or  bell  punch  to  keep  count  of  drinks n  176 

classification  based  on  different   kinds  of  liquors 177 

classification  of  wholesalers,  retailers  and  manufacturers....   178 

law  need  not  define  wholesale  dealer n  178 

on  wholesalers  in  malt  liquors n   178 

liability  of  brewer  for  more  than   one  tax n  178 

statute  void  in  part 179 

discrimination  against  liquors  manufactured  in  other  states..    179 

whether  lien  junior  to  mortgage 1 80 

making    tax    a    lien 180 

disposal  of  taxes  and  license  fees  dependent  on  statutes..   181.   182 

appropriation  of  for  poor  or  other  purposes L82 

regidarity  of  proceeding  in  levying,  presumption 18  I 

license   a    franchise   subject    to   be    taxed 186 

licensee    fee    not 189 

licensee  fee  not  a  tax 18 

upon    licenses n   -tit 

ordinance    imposing    construed n 

power  to  city  as  to  must  be  clearly  given 209 

under  power  to  tax  city  may  license 209 

when  city  may  impose  occupation   tax 210 

power   of   city   as   to   generally 214 

by  city  graduated  on  amount   of  sales 214 

ordinance  as  to,  presumption  as  to  validity n  214 

license  fee  imposed  by  city  not n   214 

where  charter  of  town  authorizes  it  to  collect n  226 


g34  INDEX. 

TAXES — Continued.  section 

penalties  not n  554 

receipt  for  as  evidence 669 

records   of   assessor   of   as   evidence 669 

books  showing  payment  of  internal  revenue  tax,  evidence....  669 

TEMPOEARILY. 

ordinance  requiring  saloons  to  be  so  closed 165 

TEMPORARY  INJUNCTION.     See  Injunction  and  Abatement. 

TENANT.     See  Injunction  and  Abatement. 

TENDER. 

of    fee    not    sufficient n  227 

TERMS.     See  Definitions  and  Terms. 

TESTIMONY.     See  Evidence. 

THREATS. 

as  an  element  of  wife's  damages 482 

TIME. 

of    filing    petition    for    license 243 

of  granting  license,  power  of  board  as  to 278 

of  holding  local  option  election 395,  396 

of  service  of  warrant,  search  and  seizure  laws 530 

of  offense,  charging  of,  indictment 656 

charging  of  in  indictment,  precise  time  not  essential 658 

charging  offense  with  a  continuando 658 

of  offense,  charging  of,  sale  on  Sundays 650 

of  offense,  charging  sales  on  Sunday 660 

of  offense,  evidence  as  to,  general  rule 677 

of  offense,  evidence  as  to  exact,  necessity  of 677 

TINCTURE  OF  GENTIAN. 

not    within    statute 37 

TINCTURE   OF  GINGER. 

not  within  statute n     37 

TIPPLING   HOUSE. 

defined 16 

TITLE. 

of  ordinance,  surplusage 143 

of  act  constitutional  provision  as  to  construed 61 


TONICS. 


when    intoxicating n     38 

whether  intoxication,  evidence  of  effect  of n  674 


INDEX.  835 

"  TOWN."  SECTION 

as  used  in  statute  construed 86 

population   of   as    basis    for    taxation 175 

recovery    of    penalty    by •r'",'J 

TOWN   AGENTS. 

authorized  to  purchase  and  sell  liquors %,  07,  9£ 

certificate    of,    notice n     98 

sale  by  to  minor '» 

required  to  keep  record n 

application  to  for  liquor " 

Liability   of  in   damages n    98 

TRANSCRIPT. 

of  evidence  on  appeal  from  license  board n  276 

TRANSFER. 

of   hotel    license,   statements   in    application   for n  246 

of  license,  authorized  by  statute n  293 

of  license,  none  can  be  made 278 

of  liquor  tax  certificate  in   New  York 299 

of  license,   right  to   revoke n  299 

of    license    in    Pennsylvania 300 

of  license  by  insolvent,  order  for n  300 

of  license,  what  petition  should  contain n  300 

of  license  where  right  to  forfeited n  300 

must  be  in  accordance  with  statute n   300 

appeal   from   order   for n  300 

TRANSFER  AGENT. 

testimony  of  as  to  delivery  of  liquors 671 


u. 

r  XI  FORM. 

in   operation,  statutes  should  be 63 

ordinances  should   be 141 

UNITED  STATES. 

license  from  confers  no  right  to  violate  state  laws B  : 

evidence   of   payment    of,   injunction 627 

license    as   evidence 

UNITED    STATES    CONSTITUTIONAL    PROVISIONS    AFFECTING 
LAWS i 

fourteenth  amendment  as  affecting  power  of  states 44 

fourteenth  amendment  does  not  prevent  state  legislation  as  to 

liquor   traffic 4."» 

statute  not  impairing  obligation  of  contracts 46 


836  INDEX. 

UNITED  STATES  CONSTITUTIONAL  PROVISIONS— Continued    section 
statute  prohibiting  not  repugnant  to  United  States  Constitu- 
tion      46 

statute  not  ex  post  facto 46 

deprivation  of  life,  liberty  or  property  without  due  process  of 

law    construed 47 

as  affecting  particular  statutes 47 

do  not  prevent  state  requiring  license  fee 47 

power  of  state   as  affected  by,   commerce 48,  49 

power  of  state  as  to  interstate  shipments  generally 50 

sales  in  original  packages,  prior  to  Wilson  Act 51 

statute  forbidding  keeping  of  liquors  for  purpose  of  sale  in 

another  state 52 

statute   forbidding  shipments   into   state 53 

Wilson  Act,  effect  and  construction  of 54,  55,  57 

statute  limiting  right  to  order,  application  to  state  official..      56 

statute  as  to  soliciting  orders  for  liquor 59 

screen  law  not  violation   Fourteenth   Amendment 109 

prohibiting  sales  to  certain  classes  of  persons 112 

UNLAWFUL   SALES. 

revocation   for 310 

"  UPON  ARRIVAL." 

as  used  in  Wilson  Act  construed 57 

V. 

VALIDITY  OF  ORDINANCE.     See  Ordinances. 

of  statute.     See  Constitutionality  of  Law. 

of  statute  can  not  be  questioned  by  one  not  affected 75 

VALUE. 

of  property,  diminished  by  prohibition 86,  87,  88 

of  liquors  as  affecting  jurisdiction,  search  and  seizure n  546 

VARIANCE. 

between  complaint  and  warrant,  search  and  seizure 521 

VEHICLE. 

used  in  carrying  liquor,  seizure  of 507 

VESSELS. 

in   which   liquor   kept,   seizure   of 516 

VESTED  RIGHT. 

none    in    license 187 

VIEW. 

of  interior  of  saloon,  statute  forbidding  obstruction  of..   109, 

110,  111 


index.  v::7 

VINOUS  LIQUOR.  section 

28 
cider   not 

denned 13 

36 

wine   is 

VINOUS  SPIRITS. 

1 7 
alcohol   not 

VIOLATIONS.     See  Offenses. 

of  Injunction  decree,  See  Contempt;    Injunction  and  Abatement, 
evidence  showing.     See  Burden  of  Proof;   Circumstantial  Evi- 
dence;   Evidence. 

of  law  not  excused  by  license  from  United  States 84 

sales  by  town  agent n     9° 

as   to   premises   and   use   of 105,  106,   101 

as    to    entrances 10 ' 

of  statute  confining  business  to  single  room 107 

obstructing  view  of  interior  of  saloon HI 

of  Sunday  closing  law 1 

of   local   option   law 376 

VIOLATIONS  OF  LAW.  See  Burden  of  Proof;  Evidence;  Indict- 
ments; Offenses;  Statutes.  See  the  particular  violation 
Statutes. 

refusal   of   license   for 284>  28a 

conviction    for,    revocation 313 

revocation   of  license  to   partners 314 

condition    of    bond    against 349 

VOLUNTARY  PAYMENT. 

of  license  fee,  right  to  recover 199.  200 

VOTE. 

on  local  option.     See  Local  Option  Laws. 

VOTERS. 

as    remonstrants 261,  262 

mode  of  determining  majority  of n  261 

signers  of  local  option  election  petition 'x  ; 

at    local    option    election 400 

w. 

WAGON. 

used  in  carrying  liquor,  seizure  of 507 

WAIVER. 

of  objection  to  defects  in  service  of  notice  of  seizure 536 

not  of  jurisdictional  defects  by  appearance,  search  and  seizure.  537 

of  defects  in  notice  of  seizure  by  appearance 537 

of  right  as  to  civil  action  for  penalty 562 


838  INDEX. 

WAREHOUSEMAN.                                                                                         section 
liquor  in  hands   of,   search  and   seizure 506 

WARRANT.     See  Search  and  Seizure  Laws. 

search  and  seizure,  when  not  contempt  to  resist 518 

search  and  seizure,  how  long  in  force 519 

generally,    search    and    seizure 519 

search   and   seizure,   oath   of   complainant 519 

search  and  seizure,  issuance  of,  probable  cause 519 

search  and  seizure,  should  describe  only  one  place n  519 

search  and  seizure,  valid  when  issued,  subsequent  omission  in 

proceedings n  519 

search  and  seizure,  duty  of  judge  to  issue n  519 

search  and  seizure,  misrecital  in  as  to  who  issued  by n  519 

jurat  controlled  by  recital  in,  search  and  seizure n  519 

and  complaint  in  one  instrument,  search  and  seizure 520 

of  arrest  and  search  warrant  in  one  instrument 520 

surplusage  in,  search  and  seizure 521 

and  complaint,  variance  between,  search  and   seizure 521 

allegations  as  to  probable  cause,  search  and  seizure 523 

search   and  seizure,   allegations   as  to   liquors 524 

description  in  of  place  to  be  searched 527,  528,  529 

search  and  seizure,  description  of  place  in  should  be  as  certain 

as  in  deed n  527 

time  of  service  of,  search  and  seizure  laws 530 

search    and    seizure    without,    generally 531 

seizure  without,  allegations  in  complaint  and  warrant 532 

waiver  of  defects  in  return  of  officer  upon 537 

arrest   without,   search   and   seizure 534 

search  and  seizure,  service  of  by  officer  not  directed  to....   n  538 
as  justifying  officer,  search  and  seizure 538 

WHISKY. 

as    a    spirituous    liquor 33 

defined 33 

meaning  of  as  used  in  Pure  Food  Act,  decision  by  President 

Taft n  33 

as  an  intoxicating  liquor 34 

WHISKY  COCKTAIL. 

an    intoxicating    drink 34 

WHITE  MALE  INHABITANT. 

restricting  issuance  of  license  to 201 

WHOLESALERS. 

ordinance  prohibiting  in  certain  sections n  15fl 

taxation    of 17s 

manufacturer    not n  178 

brewer  subject  to  tax  as n  178 

law  as  to  tax  need  not  define n  178 


INDEX.  839 

WHOLESALERS— Continued.  section 

in  lager  beer n  178 

in  malt  liquors,  special   tax  on n  178 

WIDOW. 

is   a   "  person   aggrieved  " 423 

action  by,  death  of  husband 487,  488 

a   "  person  "   within   civil  damage  act n  4S7 

action  by,  husband  killed  by  intoxicated  person 489 

WIFE. 

of  applicant  not  a  qualified  petitioner 249 

when    not    a    freeholder n  249 

is    a    "  person    aggrieved  " 423 

thrown  from  carriage,  civil  damages 428 

recovery    under    civil    damage    act,    intoxication    of    husband, 

nature   of    right n  454 

action  by,  civil  damages,  sufficiency  of  declaration n  457 

action  by  for  injury  to  means  of  support 473 

must  show  lawful  marriage,  civil  damages n  474 

injury  to  means  of  support,  income  of  or  ability  to  labor  im- 
material    475 

action  by  for  injury  to  means  of  support,  effect  of  divorce.  ..   476 

action  by,  pleading,  injury  to  means  of  support 477 

action  by,  injury  to  means  of  support,  evidence  of  earnings 

and    financial   condition 478 

action  by,  injury  to  means  of  support,  evidence  as  to   prior 

conduct 479 

action  by,  evidence  as  to  age  and  number  of  children 480 

action   by,   physical    suffering 4^ 2 

action  by,  assault  by  husband 483 

action  by  for  injury  to  property 484 

action  by,  consent  or  acquiescence  of 485,  486 

action  by,  exemplary  damages 490 

WILSON  ACT. 

laws  affecting  sales  in  original  packages  prior  to 51 

valid 54 

effect  and  construction  of 54 

does  not  prevent  right  to  order  and  receive 55,  56 

words  "  upon  arrival  "   construed 57 

WINE. 

as    a    spirituous    liquor 35 

defined    and    considered 35,  36 

as  an  intoxicating  liquor,  statutes 36 

whether  intoxicating,  judicial  notice 36 

WINE   GROWERS. 

statutes  permitting  to  sell  without  license 17^ 


S40 


INDEX. 


WITNESS.     See  Evidence.  section 

as  to  fitness  of  applicant n  240 

in  proceedings  to  revoke,  swearing  of 321 

WOMEN.     See  Females. 

prohibiting    sales    to 114 

prohibiting    employment    of 115 

prohibitions  as  to 162 

ordinance    prohibiting   employment   of 163 

ordinance  making  fee  higher  in  places  where  employed 214 

licenses  to 238 

WRITING. 

license  required   to  be  in 231 

WEIT  OF  PROHIBITION. 

none  to  restrain  void  grant n  268 

none  to  compel  granting  of  license n  271 

WRITTEN  APPLICATION. 

for  liquor  may  be  required 128 

Y. 

YEAR. 

in  license  laws  refers  to  calendar  year n  297 


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